State Of Tripura And Ors. vs Sukla Nama And Ors.

[1] These appeals have filed by the State Government to challenge the judgment of the learned Single Judge dated 19.11.2018 in case of Smt. Tulshi Das versus the State of Tripura and others in WP(C) No.1566 of 2017 and connected petitions.

[2] Briefly stated the facts are as under :

All the petitioners were engaged under different capacities on contractual basis under a centrally funded programme called Edusat Network Programme in the year 2007 on fixed salary. They continued to discharge their duties in such capacity year after year. They filed the petitions seeking regularization on the respective posts from 27.05.2008, which was the date on which according to the petitioners posts were created and sanctioned in regular establishment by the State Government.

[3] Before the learned Single Judge the State Government appeared and filed the reply contending that with a view to creating audio/video interactive network for quality education for students and training of teachers in states, Ministry of Human Resource Development and Indian Space Research Organization had framed a scheme called 'Edusat' network connectivity of schools and teachers in May, 2005. In order to implement such scheme within the State, in a meeting of monitoring committee of the State officials which was held on 23.11.2006, it was decided that 8(eight) technical persons would be engaged purely on contractual basis for one year. For selection of such technical staff interview board was constituted under notification dated 24.01.2007. Advertisement inviting applications was issued on 01.01.2007. Interviews were conducted for various duties, such as Network Engineer, Producer, Technical Assistant, Programme Assistant etc. The appointments were made in favour of the petitioners on contractual basis with consolidated salary of Rs.3,000/- per month. The respondents further stated that the Finance Department did not accept the proposal for regularization of the petitioners.

[4] The learned Single Judge was of the opinion that the decision of Supreme Court in case of Secretary, State of Karnataka and Ors. vs. Uma Devi (3) and Ors., reported in (2006) 4 SCC 1 would not prevent regularization of these petitioners. Reference was made to the decision of Supreme Court in case of State of Karnataka vs. M. L. Kesari reported in (2010) 9 SCC 247 in which exceptions carved out by the Supreme Court in Case of Uma Devi were further elaborated. The petitions were allowed by making following observations :

"15. From the above observation made by the apex court, it appears that none of the factors negating the claim is applicable in the case of the petitioners. Only question that may arise is whether the petitioners were working against the sanctioned posts. From the minutes of the Council of Ministers as recorded in the confidential memorandum No.F.2(13)(SCERT/EDUSAT/07 dated 21.05.2008, Annexure-5 to the writ petition, it would be apparent that in responding to the necessity those posts were created as there was requirement of creation of the posts. It is no denying fact that the petitioners were serving the said requirement. To meet that requirement, those posts were created. Thus, it meets the requirement of working against the created posts. However, for absence of the formal appointment and in terms of the Finance Department Memorandum No.F.23(24)-GA(P&T)/95 dated 05.07.2005, Annexure R/2, those posts have lapsed, but not yet abolished. Even the department has approached for re-creating those posts and there is no impediment as the Council of Ministers has already created the posts following the process. Those posts at any point of time could be resurrected by the Finance Department, even in the administrative capacity. Situated thus, this court is of the view that when the respondents have taken a specific stand the posts were created, or for creation of the posts when they themselves has proposed to create those posts again. For purpose of regularisation of the petitioners no plea, as raised can stand in the way. Having observed thus, the respondents are directed that the petitioners shall be considered for regularisation within a period of four months from the day when the Principal Secretary, Education (School Education) shall receive a copy of this order from the petitioners. It should be apposite to note here that considering 10 years of continuous service, though in the contractual engagement, the petitioners may not be considered against the fixed pay employment, keeping the regular posts in abeyance. In view of what has been observed above, this writ petition stands allowed and disposed of. There shall be no order as to costs.

A copy of this order be furnished to Mr. N. Chowdhury, learned GA for the respondents."

[5] This judgment the State Government has challenged in these appeals. Appearing for the Government learned counsel Shri Dipankar Sharma submitted that there were no sanctioned posts against which the petitioners were appointed. They were engaged purely on contractual basis under the centrally funded scheme. Directions for regularizing them in service therefore could not have been issued. He relied on certain decisions, reference to which would be made at a later stage.

[6] On the other hand learned counsel Shri Arijit Bhaumik appeared for the original petitioners and submitted that all the petitioners were engaged after inviting applications through public advertisement and conducting interview by the interview board constituted for such purpose. Their initial engagements were thus after following regular selection process. They have continued to discharge their duties uninterruptedly for over 10 years now. The posts were sanctioned by the Government. Subsequent lapsing of the posts can be cured by administrative action. The learned Single Judge has noted the distinction between lapsing of the posts and abolition of posts. He also relied on certain decisions, reference to which would be made at a later stage.

[7] Having thus heard learned counsel for the parties and having perused documents on record what emerges is that the petitioners were engaged on purely contractual basis on fixed monthly remuneration. They were engaged for discharging certain specified duties under a centrally funded scheme. At the time of their engagement, there were no sanctioned posts. It is true that under a memorandum dated 21.05.2003 the Government of Tripura envisaged establishment of a set up for Edusat network in Tripura which would comprise of different technical staff and that the incumbents would be paid wages as per prescribed scales of pay. This notification also contained a proposal for framing of recruitment rules for the respective posts. The fact of the matter is that no regular appointments were made within one year of publication of the said notification or any time thereafter. In such background the question is, can the petitioners assert their right to be regularized on posts which are not in existence? Answer obviously has to be in the negative. As correctly pointed out by the learned Additional Government Advocate in case of Secretary to Government, School Education Department, Chennai versus R. Govindaswamy and others reported in (2014) 4 SCC 769 engagement of a long duration do not automatically result in right of regularization when there is no sanctioned post against which the person is engaged. In case of Uma Devi (supra) also the Supreme Court has frowned upon regularization of casual workers after a passage of time. The said judgment, however, may not have direct applicability in the present case since it may be possible for the counsel for the petitioners to argue that the initial engagement of the petitioners can be described at best as irregular and not illegal since they were engaged after inviting applications through public advertisement and conducted interviews through interview board. He may also be justified in making reference to the decision in case of M. L. Kesari (supra) where this aspect emerging from the decision in case of Uma Devi (supra) is further elaborated. Nevertheless, the facts of the present case are quite different. Admittedly when the petitioners were engaged on contractual basis there were no sanctioned posts or even a sanctioned set up. Subsequent decision to create a permanent establishment appears to be a stillborn policy. Government never acted upon it, never framed recruitment rules and never undertook the task of making regular appointments against such sanctioned posts. As per the Government policy upon creation of a post if the same is not filled up within one year the same would automatically lapse. Even the learned Single Judge has proceeded on the basis that these posts had lapsed. In that view of the matter, there could not have been any directions for regularization of the service of the petitioners. Firstly because they were not engaged against sanctioned posts and secondly because they were appointed on fixed salary contractual basis under a centrally funded scheme. Counsel for the original petitioners however relied on a Government of Tripura notification dated 29.11.2009 in which one of the clarifications issued by the Finance Department is that the Administrative Department shall be competent to sanction continuation of temporary posts in regular scale provided these posts have been created with prior concurrence of the Finance Department and with the approval of the Council of Ministers and these posts are physically occupied on the date of expiry of the previous continuation. Firstly, as noted after envisaging setting up of a permanent establishment, State of Tripura never implemented the said decision. Secondly, the said clarification at best would empower the concerned department to sanction continuation of temporary posts. No such sanction by the concerned department having been granted is brought to our notice.

[8] For all these reasons, the judgment of the learned Single Judge dated 19.11.2018 is reversed.

[9] In the result, appeals are allowed and disposed of. Pending application(s), if any, also stands disposed of.