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Judgment
[1] These appeals are filed by the State Government to challenge the judgment dated 07.02.2019 passed in W.P(C) No. 170 of 2018 and connected petitions in case of Sri Tiklu Chandra Dey Vs. The State of Tripura & Ors. By the said judgment the learned Single Judge gave directions for regularizing the petitioners in terms of Government of Tripura policy contained in memorandum dated 21.01.2009. The service particulars of the petitioners can be recorded from the judgment of learned Single Judge as under:
Sl. No.
Name of the writ petitioner with writ petition No.
Date of engagement
as the full time casual worker
Date of completion of
ten years as full time casual worker
1.
Pralay Goswami, the writ
petitioner in W.P.(C) No.166 of
2018
01.05.2005
30.04.2015
2.
Jiten Singh @ Giten Singha, the writ petitioner in W.P.(C) No.167 of 2018
12.05.2001
11.05.2011
3.
Bipan Chakraborty, the writ
petitioner in W.P.(C) No.168 of 2018
May,2003
May, 2013
4.
Mantosh Datta, the writ
petitioner in W.P.(C) No.169 of 2018
01.12.2003
30.11.2013
5.
Tiklu Ch. Dey, the writ petitioner in W.P.(C) No.170 of
2018
08.11.2001
07.11.2011
6.
Suman Deb, the writ petitioner
in W.P.(C) No.171 of 2018
10.03.2004
09.03.2014
7.
Swapan Acharjee, the writ petitioner in W.P.(C) No.172 of
2018
10.03.2004
09.03.2014
8.
Swapan Acharjee, the writ
petitioner in W.P.(C) No.173 of 2018
14.11.2002
13.11.2012
9.
Krishna Debnath, the writ petitioner in W.P.(C) No.174 of
2018
14.11.2002
13.11.2012
10.
Badal Chakraborty, the writ petitioner in W.P.(C) No.175 of
2018
January, 2005
January, 2015
11.
Sanju Singha, the writ petitioner
in W.P.(C) No.221 of 2018
01.04.2006
31.03.2016
[2] The Government of Tripura had formulated a policy circulated under OM dated 21.01.2009 for granting regularization to casual workers and DRWs upon completion of 10(ten) years of service. The petitioners had claimed benefit of the said memorandum. However, the prime objection of the Government to the services of the petitioners being regularized in terms of the said OM was that, majority of them were engaged after 31.03.2003. The Government would point out that under OM dated 9th June, 2004 directives were issued by the State Government against engagement of casual workers after 31.03.2003 without prior concurrence of the Finance Department. In this context, in the said OM it was further provided that:
"(vi) All concerned shall immediately terminate those DRW/Part Time/Contingent/Casual/Fixed Pay/Contract etc. workers who have been engaged after 31-03-2003 without concurrence of the Finance Department. All the concerned Departments shall submit a report within 15-06-2004 continuing action taken in the regards."
[3] According to the Government thus the benefit of the regularization scheme contained in the OM dated 21.01.2009 would not be available to those workers who were engaged after 31.03.2003.
[4] Previously when this appeal was heard, learned advocate Mr. Arijit Bhowmik for the original petitioners had contended that in the past such an issue was considered by the Single Judges and despite the said cut off date of 31.03.2003, directions were issued for granting the benefit of the scheme of regularization to workers engaged after the said date on the ground that they were continued uninterruptedly for a long period of time and their services were not terminated despite the directives contained in the OM dated 9th June, 2004. He had also stated that these judgments have been complied by the Government without preferring appeals. Today he placed on record five different orders passed by the learned Single Judge for regularization of such casual workers who were engaged after 31.03.2003 and stated that all these judgments have been complied and State Government has regularized the services of these workers.
[5] Ordinarily we would have examined the contention of the Government that the scheme of regularization framed by the State of Tripura in the year 2009 would not cover those casual workers who were engaged after 31.03.2003. However we find that in several cases this objection was overruled by the Single Judges and the Government had accepted the decisions. Surely in matters of regularization of casual workers, the Government cannot adopt pick and choose policy, choosing to comply with the directions in a particular matter and to challenge in another. There has to be consistency in the Government stand regarding such policy issues. In other words if the Government has accepted the judgments and the interpretation of memorandum concerning regularization of casual workers in one set of cases, without any explanation or distinction in facts of other set of cases, the Government cannot challenge another judgment rendered in similar background.
[6] We have perused different orders placed on record by Mr. Arijit Bhowmik, learned counsel for the original petitioners. In case of Sri Ajit Debnath Vs. The State of Tripura & Ors. [W.P(C) No.1255 of 2016] and connected petitions decided by the learned Single Judge on 23.06.2017, this issue was specifically raised as can be seen from the following observations:
"7. From the Para-6 of the reply, what surfaces for relevant consideration is that, according to the respondents, those who are engaged prior to 31.3.2003 are only competent to be regularised in terms of the said memorandum dated 21.01.2009, not others."
[7] In this context while overruling the objection of the Government the learned Single Judge made following observations:
"9. Mr. T.D. Majumder, learned G.A. has further submitted that on the basis of the memorandum dated 18.12.2012 [Annexure R/2] another exercise was taken for regularisation of services of DRWs/Casual Workers etc. from several departments, who were engaged on full time on or prior to 31.03.2003 and had completed 10 years of continuous service. It is reflected from the memorandum dated 18.12.2012 [Annexure R/2 to the reply] that a decision was taken by the government to regularise the services of the DRWs/casual workers, of the Department, who were engaged on or prior to 31.03.2003 on full time basis with or without concurrence of Finance Department and have completed 10 years of service as on 31.07.2012, other than Part Time Workers, Contract Basis Workers, Honorarium Paid Worker, Voluntary Workers, Teachers and Workers engaged under SSA and other Schemes/ Programmes, may be considered for this process of regularization. Thereafter the other general conditions as are available in the memorandum dated 21.01.2009 have been engrafted. This memorandum has nothing to do with the memorandum dated 21.01.2009."
[8] Eventually the petitions were disposed of by issuing following directions:
"11. In view of the memorandum dated 21.01.2009, this court does not find any impediment in the way of regularisation of the petitioners after their completion of ten years of service. However, such regularisation would be subject to the conditions as laid down in the memorandum dated 21.01.2009.
Having observed thus, the respondents are directed to regularise the petitioners with effect from the next date on completion of ten years of service within a period of 6(six) months from today on scrutinising their individual records. But it is made clear that they shall get the regular scale with effect from the next date of completion of ten years of service in terms of the memorandum dated 21.01.2009.
With these observations and direction, all these writ petitions are allowed to the extent as indicated above."
[9] Likewise in case of Sri Ajay Kumar Acharjee Vs. The State of Tripura & Ors. [W.P(C) No.1085 of 2016] decided by the learned Single Judge on 31.08.2017 the petitioner was engaged as a full time casual worker w.e.f. 15.11.2003. After completion of 10 years of service he had claimed the benefit of regularization. In his case also the prayer was opposed on the ground that he was engaged after 31.03.2003. The learned Single Judge after referring to the decision in case of Sri Ajit Debnath (Supra) made following observations:
"6. Mr. A. Sengupta, learned counsel appearing for the respondents has fairly submitted that the case of the petitioner is squarely covered by the said decision in Ajit Debnath vs. State of Tripura and others. Be that as it may, this Court in Ajit Debnath vs. State of Tripura and others has laid the perspective to read the policy decision of the Government in respect of regularisation of the services of full time DRWs/Casual Worker/Contingent Worker from the next date of completion of 10 years of service on fulfilling the criteria as laid down in the said memorandum dated 21.01.2009. It has been held that no narrow interpretation of the policy would serve the purpose of regularising the DRWs/Casual Worker/Contingent Workers who have completed their 10 years of service having been engaged after 31.03.2003 with or without concurrence of the Finance Department. In the said memorandum dated 21.01.2009, it is provided that there shall be a complete ban on engagement of DRW/Casual/Contingent etc. workers after 31.0.03.2003 without concurrence from the Finance Department. It was cautioned that the responsibility shall be fixed on the official found responsible for any irregular engagement henceforth. Such irregular engagement shall have to be instantly terminated. Then wages, if paid, shall be recovered from the official concerned. Even after that cut off date i.e. 31.03.2003, the petitioner was engaged and his engagement was subsequently concurred by the Finance Department. Further he was allowed to continue more than 10(ten) years of service. Now the respondents cannot be allowed to hold that the petitioner will not get regularisation of his service, in terms of the said policy decision as provided in the memorandum dated 21.09.2009.
Having observed thus, the respondents are directed to regularise the service of the petitioner with effect from the next date of completion of 10(ten) years of service within a period of n6(six) months from today on scrutinising his individual records. But it is reiterated that the petitioner shall get the regular scale with effect from the next date of completion of 10 years of service in terms of the memorandum dated 21.01.2009. The said memorandum cannot be interpreted narrowly as sought to be done by the respondents."
[10] In case of Sri Sarbesh Sarkar Vs. The State of Tripura & Ors. [W.P(C) No.41 of 2017] and connected petitions decided by the learned Single Judge on 11.07.2017 once again such an issue came up for consideration. All the petitioners were engaged on 30th June, 2003 i.e. after 31.03.2003. The learned Single Judge referred to the decision in case of Sri Ajit Debnath (Supra) and gave following directions:
"16. The petitioners cannot be denied the benefit of regularization as they have rendered service for more than ten years (14 years at a stretch) as the casual workers. They need security of their employment. As stated earlier, since they were/are allowed to continue for such long years, the concurrence of the Finance Department is deemed. Now the respondents are bound to regularize them from the date when they had completed ten years of service without break in the causal employment under their policy of regularization.
Having held so, the respondents are directed to regularize the petitioners with effect from the next date on completion of ten years of service within a period of six months from today on scrutinizing their individual records. But it is made clear that they would get the regular scale with effect from the date of completion of ten years of service in terms of the memorandum dated 21.01.2009."
[11] Similar issue had come up in case of Sri Dharmajit Singha Vs. The State of Tripura & Ors. [W.P(C) No.1086 of 2016] decided on 12.07.2017 petitioner therein was engaged on 15.11.2003. His regularization was opposed on the ground that such engagement was after 31.03.2003 the Single Judge issued following directions:
"17. Having observed thus, this court is of the view that the petitioner is entitled to get the similar direction as given by this court in Ajit Debnath versus State of Tripura & Others [Judgment and order dated 23.06.2017 delivered in WP(C) No.1255/2016]. Hence, the respondents are directed to regularize the service of the petitioner with effect from the next date on completion of ten years of service within a period of six months from today on scrutinizing his individual records. But it is made clear that they shall get the regular scale with effect from the next date of completion of ten years of service in terms of the memorandum dated 21.01.2009."
[12] It can thus be seen that consistently in series of cases the view taken by the learned Single Judges that the memorandum providing that there shall be no further engagement of casual workers after 31.03.2003 without the concurrence of the Finance Department, had nothing to do with the scheme of regularization contained in OM dated 21.01.2009. These judgments have been accepted by the Government as stated by the counsel for the petitioners. Concerned workers have been regularized. In the present group of cases the Government cannot rake up an old issue in which the Government has accepted the interpretation of the Single Judge and implemented the directions issued for regularization.
In the result all appeals are dismissed.