Ranjit Chowhan vs State Of Tripura And Ors

[1} Petitioner has prayed for a direction to the respondents to regularise him in service as per office memorandum dated 1st September, 2008. The petitioner has further prayed that he be paid salary for the period between February 2004 to 31st August, 2010 during which period he had discharged duties.

[2] The chequered history of the case can be briefly stated as under :

The petitioner was appointed as a Night Guard by the Director of School Education, State of Tripura, under an order dated 30th April, 1990 on fixed salary of Rs.150/- per month. With effect from 1st October, 1992 the petitioner was placed in the regular scale of pay of Rs.775-1135/-. Under order dated 5th February, 2004 the Director of School Education stopped paying salary to the petitioner in the regular scale of pay, instead, ordered payment of Rs.1,800/- per month fixed by way of remuneration. It was further directed that one-third amount of this would be adjusted towards recovery of the past overpayments. The petitioner thereupon filed WP(C) No.65/2004 and challenged the said order. Before the High Court the stand taken by the respondents was that wholly unauthorisedly the Drawing and Disbursing Officer(DDO) had placed the petitioner in regular scale of pay from 1st October, 1992 and when such irregularity was discovered, the petitioner was reverted to fixed salary structure and overpayment was ordered to be recovered in instalments. The learned Single Judge rejected the petitioner's prayer for treating him as a regular employee w.e.f. 1st October 1992, also upheld the stand of the department that granting regular scale of pay to the petitioner from the said date was an irregularity. However, with respect to the recovery of past overpayments, the learned Judge granted partial relief. 50% of the overpayments would be recovered from the petitioner, remaining 50% would be recovered from the erring Government officials. Even if for some reason such recovery cannot not be made, the same shall not be recovered from the petitioner. The petitioner preferred W.A No.24/2004 against the said judgment of the learned Single Judge. Division Bench disposed of writ appeal by a judgment dated 2nd August, 2010. Petitioner's request for regularization from 1st October, 1992 was rejected. However, with respect to recovery of past overpayments, the Division Bench allowed the appeal and held that the petitioner would not be required to refund even half of the overpaid salary. The Division Bench also permitted the petitioner to make an application for regularization, which the Government would decide on its merits.

[3] The Government of Tripura issued an office memorandum dated 1st September, 2008 under which scheme for regularization of Daily Rated Workers(DRW), Contingent and Casual Workers who had completed 10(ten) years of service was framed. The petitioner relied on the said office memorandum and in terms of the observations made by the Division Bench(judgment dated 2nd August, 2010) made a representation. The authorities did not consider such request upon which the petitioner filed WP(C) No.224/2011. This petition was disposed of by a judgment dated 28th June, 2011. In the meantime, the petitioner had crossed the age of superannuation and, therefore, retired w.e.f 31st October, 2010. The learned Single Judge while disposing of the petition, asked the petitioner to make a fresh representation for regularization and also the offer payment of his admissible dues. The petitioner made such a representation on 12th December, 2011 in which he requested for regularization in service from 1st April, 2008. The petitioner also pointed out that he had not been paid any salary for the period between February 2004 to 31st October, 2008. This representation was disposed of by a memorandum dated 7th May, 2012 in which the Director of School Education observed that the case of the petitioner for regularization does not fall under any of the existing schemes of the Government and such request was, therefore, rejected. The petitioner, therefore, once again approached the High Court by filing WP(C) No.307/2012 which was disposed of by a judgment dated 29th May, 2013. The learned Judge was of the opinion that the Director of School Education while rejecting the petitioner's request for regularization had not cited any reasons. Petitioner's request for payment of salary from February 2004 to August 2010 was also not considered. The Director of School Education was, therefore, asked to reconsider the representation of the petitioner within 2(two) months from the date of the order.

[4] It appears that thereupon the respondents paid a sum of Rs.74,850/- to the petitioner, presumably by way of unpaid salary for the period between February, 2004 to August, 2010. The petitioner was not made aware about the calculation of such unpaid salary, nor his request for regularization was granted. He has, therefore, filed the present petition.

[5] Case of the petitioner is that he had rendered continuous service from the year 1990 till he was made to retire in the year 2010. He, therefore, had a right to seek regularization in service, particularly in view of the Government's policy laid down under office memorandum dated 1st September, 2008. Case of the petitioner further is that the entire period between February 2004 to August 2008 though he had discharged his duties, he was not paid any salary. An amount of Rs.74,850/- deposited in his account is without giving any break-up and in any case, is inadequate.

[6] The respondents have appeared and filed reply in which it is contended that the petitioner was engaged on a fixed salary basis on contractual terms. He was wrongly granted regular pay scale in the year 1992 when such error was detected by the Government, the same was corrected. Case of the petitioner is not covered under any Government scheme for regularization. Such a request was, therefore, rejected. With respect to the non-payment of salary, it is stated that from February 2004 the petitioner refused to accept the salary and, therefore, salary for the period between February 2004 to July 2004 was deposited by the school authorities. From July 2004 the petitioner refused to receive the salary. It is further stated that the petitioner has been informed that he is entitled to the salary for the said period and the head of the office where the petitioner was working has also been asked to arrange payment of such salary to the petitioner.

[7] It is unfortunate that a lowly paid Night Guard was compelled to approach the High Court on several occasions for his minor grievances. Insofar as the petitioner's request for regularization is concerned, I am afraid little can be done about it. In the first round of litigation when the Government corrected the irregularity of placing the petitioner in regular pay scale from 1st October, 1992 and the petitioner challenged the action before the High Court, the Single Judge and Division Bench refused to stop the Government from doing so. The petitioner's request for being treated as a regular servant from 1st October, 1992 was rejected. Even at a later stage, the High Court merely permitted the petitioner to approach the Government with a representation for regularization. The petitioner placed heavy reliance on the Government scheme for regularization issued under office memorandum dated 1st September, 2008. His request was rejected by the Government on the ground that the case of the petitioner does not fall in any of the existing schemes of the Government for regularization. In clear terms, office memorandum dated 1st September, 2008 would not cover the case of the petitioner. Under the said scheme, the Government decided to regularise service of those persons who were engaged on a daily rated, casual or contingent basis and who had completed 10(ten) years as on 31st March, 2008. The petitioner was not engaged on a daily rated basis or casual or contingent work. His engagement was contractual on fixed salary and without sanctioned post. The scheme of regularization dated 1st September 2008, therefore, would not cover the case of the petitioner. His representation was rightly rejected.

[8] Coming to the question of non-payment of salary between February 2004 to August 2010, the Government also agrees that the petitioner had discharged duty during such period and that he is entitled to unpaid wages. According to the Government, however, his salary was not paid because the petitioner refused to accept the same. Only question that remains is of the calculation of such unpaid wages. As pointed out by the petitioner, towards such wages the Government has already released a sum of Rs.74,850/- without giving any break-up. Prima facie it would appear that such sum cannot cover the entire period of over 6(six) years. In the affidavit-in-reply also the Government has not given the break-up of the unpaid wages, nor contended that after release of the said sum of Rs.74,850/-, there is no further payment due and outstanding. In fact, in the said affidavit which was sworn as laid as on 28th July 2016, it is stated that the head office of the concerned school is asked to arrange the payment of the salary of the petitioner for the said period. This would prima facie indicate that even after release of the said sum of Rs.74,850/-, there still remained some more payment to be made towards the unpaid salary for the entire period between February 2004 to August 2010.

[9] Under the circumstances, petition is disposed of with the following directions :

(a) Petitioner's request for the regularization of his service is rejected.

(b) The respondents shall give the break-up to the petitioner of the unpaid salary from the period between February 2004 to August 2010. If the totalof such sum exceeds Rs.74,850/-, after adjusting the said amount already paid, the remaining amount shall be paid over to the petitioner with simple interest @ 9% per annum from the date of filing of this petition till actual payment.

[10] These directions shall be carried out within a period of 3(three) months from today. It is expected that the respondents shall not drive the petitioner to file one more petition for this purpose. Pending application(s), if any, also stands disposed of.