Ratna Rani Saha vs State Of Tripura And Ors.

Heard Ms P Dhar, learned counsel appearing for the petitioner as well as Mr. J Majumdar, learned counsel appearing for the respondents.

By means of this writ petition, which appears to be the third round of litigation with the same cause, the petitioner has urged this Court for directing the respondents to regularize her service in view of the order dated 18.11.2011 passed in WP(C) 158/2001. The prayer amongst others fundamentally is for regularization of her service inasmuch as the petitioner was engaged on 30.08.1988. On 15.06.1998, the petitioner was removed from the said service. The petitioner had approached the Gauhati High Court, which had then territorial jurisdiction over the State of Tripura, by filing a writ petition being Civil Rule No. 252/1998, which was disposed of by the judgment and order dated 03.09.1998. The order dated 15.06.1998 whereby the petitioner was terminated was set aside by the said judgemtn and order dated 03.09.1998. In the said order the Gauhati High Court had occasion to observe as under:

"It would appear that the petitioner was appointed along with a number of other persons in connection with a scheme prepared by the State Government for rehabilitation of Reang refugees. On cessation of the scheme, all the persons appointed under the said scheme were removed from the service including the petitioner of this writ petition. But because of some defects that came to the notice of this Court over the appointment letter, this Court decided to stay the order releasing her from her earlier post. The difficulties of the State as pointed out by the learned Government Advocate are well appreciated. The Court also admires the submission of the learned Government Advocate Mr. U.B. Saha that the Government will accommodate the petitioner in some other departments or any other scheme subject to her eligibility and have no intention to throw her out of service."

[Emphasis Added]

Having regard to that observation, the Gauhati High Court directed the respondents to consider the engagement/appointment of the petitioner in some other department or in any other scheme within a period of two months.

The petitioner having persuaded by non-observance of the said direction had filed one petition for drawing up proceeding under Contempt of Courts Act being Cont. Case No. 21/1999. In the pendency of the said case for drawing up contempt proceedings, on 28.12.1999 the petitioner was appointed by the District Magistrate & Collector, North Tripura in the post of Peon (Group-D) at a fixed pay of Rs.1,000/- per month for the Reang Refugee camp at Kanchanpur under the control of the Sub- Divisional Officer, Kanchanpur with immediate effect. In the said order dated 28.12.1999, the following condition was attached:

"..............................

Said Smt. Ratna Rani Saha, will be discharged as soon as Reang Refugees are repatriated to Mizoram."

However, in the said contempt proceeding, the Court had held that no contumacious action has been established by the petitioner.

In the year 2001 the petitioner had filed another writ petition being WP(C)158/2001 praying for her regularization. Gauhati High Court by the order dated 18.11.2011 disposed of the said writ petition on observing as follows:

"Being aggrieved by the said order, the petitioner approached this court by filing a writ petition being Civil Rule No. 252/1998. The writ petition was disposed of by order dated 3.9.98 with the direction to the respondents to consider the case of the petitioner for absorption in any other department or under any other scheme in terms of the assurance of fair consideration furnished by the learned State Counsel. It was submitted by the learned State Counsel that the Govt. would accommodate the petitioner in some other department or under any other scheme, subject to her eligibility and that the Govt. did not have any intention to through her from service.

It was the expectation of the petitioner that she would be accommodated in some other department but when nothing was done she had to file a contempt petition. Thereafter, by Annexure-3 order 28.12.1999 the petitioner was appointed in the post of Peon (Group-D) at a fixed pay of Rs.1000/- per month as against her earlier appointment in the time scale of pay. It is submitted in the bar that she is still in employment with consolidated fixed pay.

In the counter affidavit filed by the respondents, it has been contended that the petitioner was appointed against a particular scheme and upon exhaustion of the same, she could not be continued in service. It has further been stated that since the petitioner was not appointed against any particular post, it is not possible to provide her time scale of pay.

The petitioner has submitted her reply affidavit. In paragraph 5 of the said affidavit, it has been stated that there is suitable post in the Relief and Rehabilitation Department to accommodate the petitioner.

By now, the petitioner has rendered almost 23 years of service. As noticed above, initially she was appointed in the time scale of pay and thereafter, after the aforesaid writ proceeding she was appointed on a fixed monthly pay of Rs.1,000/-. The learned counsel for the parties could not appraise the court as to whether the said monthly salary has been increased and also as to whether the petitioner has been provided with the salary in the time scale of pay.

Considering the nature of appointment that was initially made and the aforesaid submission of the learned State counsel in the earlier writ petition that the petitioner would be accommodated in any other Govt. department or against any scheme, this writ petition is disposed of directing the respondents to consider the case of the petitioner for payment of monthly salary in the time scale of pay and to regularize her service in accordance with the prevalent scheme. It is expected that the respondents would take sympathetic view in the matter in consideration of the long period service rendered by the petitioner.

Let the appropriate order be passed as expeditiously as possible. "

[Emphasis Added]

But thereafter no progressive step favouring the petitioner has been taken by the respondents, even though the petitioner has laid the context by stating that there are Group-D posts in the Forest Department. However, it surfaces that the respondents took some initiative for regularizing the service of the petitioner but it has transpired from the records that the Finance Department had regretted the said proposal observing that the petitioner was not appointed against fixed pay post created on keeping regular scale of the post in abeyance.

Ms P Dhar, learned counsel appearing for the petitioner has submitted that from the year 2001 the State Government had started appointing persons on fixed pay basis by keeping the regular scale in abeyance, but obviously the petitioner was not appointed under that scheme. She was appointed by the District Magistrate & Collector on a consolidated pay of Rs.1,000/- and the said appointment dated 28.12.1999 if considered the basis then by the policy as adopted by the Government of Tripura, the petitioner is eligible for getting regularization from the next day of her completing 10 years of service as the contingent worker inasmuch as in terms of the memorandum dated 21.01.2009 [of the Finance Department or its preceding memorandum on the same subject] as the petitioner had been appointed before 31.03.2003 in terms of the order passed by the Gauhati High Court. Therefore, in this regard, there cannot be any controversy.

Ms Dhar, learned counsel has further asserted that in terms of the order dated 18.11.2011, there had been no tangible exercise. Virtually, the respondents sat tight over the issue for such a long time.

Mr. J Majumdar, learned counsel appearing for the respondents has candidly submitted that the petitioner does not come within those categories of workers who are fit to be regularized by way of the government policy. Mr. Majumdar has submitted that in terms of the said judgment, initiative was taken but finally the Finance Department did not agree with the proposal for regularizing the petitioner. As stated earlier, the Finance Department regretted the said proposal. The notes of the Finance Department are collectively placed with the reply filed by the respondents as Anenxure-R4 to the writ petition.

Mr. Majumdar, learned counsel having referred to the para 16 of the reply filed by the respondents in the earlier writ petition has submitted that the respondents were "always sincere, serious and respectful to obey the direction of the Hon'ble High Court and there is no dearth of sincerity of the respondents in that regard but the petitioner, either by distorting or suppressing the fact, has tried to harass them for no reason at all and thereby the petitioner filed by her is liable to be rejected with exemplary cost."

To have the reasons for not considering the petitioner's case for regularization, it would be apposite to refer to the passage as reproduced hereunder:

"At the time of considering the regularization of the petitioner it was found that the regularization of the service will have financial implication and for this decision from the Finance Department is required. Therefore, the matter was also referred to the Finance Department to consider providing regular pay scale to the petitioner. The Finance Department on 29.03.2012 has regretted the proposal as the petitioner was not appointed against fixed pay post created by keeping similar regular scale post in abeyance. It has been further averred that a representation was filed on 07.05.2012 with a copy of the judgment dated 18.11.2011 for regularization of the petitioner's service but the Finance Department again rejected the said proposal."

The petitioner was, communicated of such decision of the Finance Department.

Situated thus, this Court finds that first, there was an assurance from the State placed through their counsel, which has been recorded in the order dated 03.09.1998 delivered in Civil Rule 252/1998. Thereafter, when the petitioner was accommodated as a contingent worker under consolidated pay she had approached the Gauhati High Court again by filing the writ petition being WP(C) 15 of 2011. By the judgment dated 18.11.2011, the Gauhati High Court had directed the respondents to consider accommodation of the petitioner in any other government department or against any scheme. The writ petition was disposed of by directing the respondents to consider the case of the petitioner for payment of monthly salary in the time scale of pay and to regularize her service in accordance with the prevalent scheme.

The prevalent scheme was the scheme which is covered by the government policy for regularization of DRWs/Contingent workers who had completed 10 years of service in the said status and for purpose of their regularization even the age limit, educational qualification etc. were relaxed by the State government. If the order dated 18.11.2011 is keenly read it would be apparent that the Gauhati High Court by order dated 18.11.2011 had also directed the respondents to consider the case of the petitioner under the "prevalent scheme". But there was no such consideration at all as would be evident from the notes produced by the respondents along with their reply.

The Finance Department, as it has emerged, has perceived the case of the petitioner as if the petitioner had claimed that as she was engaged as a fixed pay employee by keeping the regular pay scale in abeyance she should be regularized but the case of the petitioner is altogether different. The petitioner is simply a contingent worker. She is not a fixed pay employee whose regular pay scale has been kept in abeyance. Thus, the petitioner ought to have considered under the prevalent scheme for regularization of DRWs/contingent workers from the next date of completion of 10 years of service. Non-consideration is inappropriate and unfortunate. The petitioner has been working for about 29 years and she has not been considered for her regularisation.

The respondents have definitely failed to understand the direction as contained in the order dated 18.11.2011. So further room cannot be made by this Court. Accordingly, the respondents are directed to consider the regularization of the petitioner on the date when she completed 10 years of service as contingent worker in which capacity she was engaged by the order dated 28.12.1999 [part of Annexure-3 series to the writ petition] and she shall be paid the regular pay scale from such date.

However, since the petitioner has not made any prayer before the Court so far the arrear is concerned, the petitioner would enjoy the financial benefit from a date three years preceding the date of filing the writ petition, i.e. 06.05.2014, but from the next date of her completing 10 years of service, her pay shall be fixed notionally.

The respondents shall complete the entire exercise within a period of four months from the day when the petitioner shall submit a copy of this order.

In the result, the writ petition stands allowed to the extent as indicated above. There shall be no order as to costs.