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Judgment
All these writ petitions being WP(C)No.258 of 2018 [Sri Uttam Malakar versus State of Tripura & Others], WP(C)No.275 of 2018 [Sri Nirmal Paul versus State of Tripura & Others] and WP(C)No.613 of 2018 [Sri Subrata Singha versus State of Tripura & Others] are combined for disposal by a common judgment inasmuch as the conspectus of facts and the policy matrix as regards the relief viz. regularization of the petitioners in regular posts of Peon/Driver for their completion of ten years of service in terms of the memorandum bearing No.F.10(2)-FIN(G)/2008(Part) dated 21.01.2009 read with the memorandum No.F.34(3)-FIN(G)/2012 dated 04.09.2012 and the communication No.F.10(2)-FIN(G)/2008(Part) dated 03.01.2014.
At the outset, Mr. B. Banerjee, learned counsel appearing for the petitioner has referred to this court a communication of Tripura Forest Development and Plantation Corporation Limited under No.F.2-(16)(A)/Estt/TFDPC-92/10437 dated 31.03.2015 apprising the Principal Chief Conservator of Forests, Government of Tripura that two petitioners namely Sri Nirmal Paul and Sri Subrata Singha with others [Sri Ranjit Malakar, Smt. Aparna Das and Smt. Mandadhari Rupini] have completed their ten years of service on 28.02.2014 and they might be regularized against the available vacant posts. For purpose of reference the entire text of the said communication dated 31.03.2015 is extracted hereunder:
TRIPURA FOREST DEVELOPMENT AND PLANTATION CORPORATION LIMITED (A GOVERNMENT OF TRIPURA UNDERTAKING) Registered Office : Abhoynagar, Agartala-799005 Tel-0381 2354763, Fax-0381 2359238 No.F.2-16(A)/Estt/TFDPC-92/10437 dated 31.03.2015
To
The Principal Chief Conservator of Forests Aranya Bhawan, Government of Tripura, Agartala
Sub: Regularization of services of DRW/MR worker on completion of 10 years of service as on 30.07.2014
Sir,
In pursuance of Memo No.F.34(3)-Fin(G)/2012 dated 4th September, 2012 of Finance Department, Govt. of Tripura; I am to inform you that the following M/R workers who were engaged after 31.03.2003 have completed 10 years of service on dated as given below :
Sl. No.
Name of the worker
Category
Date of engagement
Date of completion of 10 years of service
01
Sri Nirmal Paul
MR(Gr-C, Tech.Driver)
01.03.2004
28.02.2014
02
Sri Subrata Singha
MR(Gr-D) Peon
01.03.2004
28.02.2014
03
Smt. Mandadhari Rupini
Mr(Gr-D) Peon
08.06.2003
07.06.2013
04
Smt. Aparna Das
MR (Gr-D)Peon
02.09.2003
01.09.2013
05
Sri Ranjit Malakar
MR (Gr-C, Tech.) Driver
23.07.2004
22.07.2014
Details particulars of the above 5 nos. workers are shown in the enclosed Annexure-I.
In this context I am to inform you that required vacant posts for accommodating the above works are available which may be seen in the following table:
Name of the post
Vacant Post
ST
SC
UR
Total
Driver (GroupC)
1 (RP-8)
1 (RP-10)
4 (RP-1,39,11)
6
Peon (Group-D)
3 (RP-6,16,18)
1 (RP-4)
Nil
6
M.C.W.(GroupD)
(RP2,6,8,12,16,43,47)
(RP14,20,27,33,39,45,49)
(RP7,48,50)
17
In view of the above I would request you to arrange issue of Govt. approval for regularization of services of these 5 nos. M/R workers against the available vacant posts at your earliest convenience.
Yours faithfully,
Illegible
[R. Das]
Managing Director
Enclo : As stated
It is to be noted that the name of the petitioner namely Uttam Malakar is not appearing in the said communication dated 31.03.2015. In this regard, the petitioner has not much elaborated but asserted that by the memorandum under No.F.34(2)/FIN(G)/2015 dated 11.12.2015 the Finance Department, Government of Tripura had asked the administrative departments to furnish detailed information in respect of DRW/Casual/Contingent/Contract/Part-time workers engaged after 31.03.2003. Accordingly, the list of DRW/Casual/Contingent etc. workers under different PSUs/Autonomous Bodies under the Forest Department was published. In the said list which has been annexed with the writ petition the names of the writ petitioners figured in Serial No.4 [Sri Nirmal Paul], Serial No.6 [Sri Subrata Singha], Serial No.32 [Sri Nirmal Malakar]. Their category and other details have been provided in the table along with other persons working in the category for which the said list had been published. Since, we are concerned with three petitioners namely Sri Nirmal Paul, the petitioner in WP(C)No.275 of 2018, Sri Subrata Singha, the petitioner in WP(C)No.613 of 2018 and Sri Uttam Malakar, the petitioner in WP(C)No.258 of 2018, the details as provided in the said list are therefore, selectively reproduced hereunder :
Sl. No.
Name of PSU
Name of worker
Designation post
Group
Present remuneration
Date of initial appointment
Date of Birth
SC/ST/UR
Educational Qualification
1.
TFDPC
Nirmal Paul
Driver
C
98.05 per month
01.03.2004
27.11.1985
UR
Class-IX
2.
TFDPC
Subrata Singha
Peon
D
63.60 per month
01.03.2004
25.05.1980
UR
Class-IX
3.
TFDPC
Uttam Malakar
Helper
D
83.60 per month
01.09.2005
31.05.1985
SC
Class-VIII
[* The date of the birth of the petitioner namely Uttam Malakar as per the driving license and identity card issued by the Employment Exchange, West Tripura [Annexure-1 to the writ petition being WP(C)No.258 of 2018] is 28.09.1969 and hence the date of birth shall remain open, subject to the verification by the competent authority.]
It has been asserted by the petitioner that the similarly situated persons whose name appear in the communication dated 31.03.2015 had approached this court by filing two separate writ petitions being WP(C)No.290 of 2017 [Ranjit Malakar versus State of Tripura and Others] and WP(C)No.237 of 2018 [Aparna Das versus State of Tripura and Others] and those writ petitions were respectively disposed of by this court by the judgment dated 14.07.2017 and the judgment dated 19.12.2019 directing the respondents to regularise those petitioners within a time frame of three months from the date of receiving a copy of those judgments for their completion of ten years of service and such regularisation has been directed from the date of their completion of ten years of service in the post of Driver/Peon. It has been also asserted that the respondents have implemented the judgment dated 14.07.2017 by issuing the order No.F.2-5(579)/ESTT/TFDPC-2018/1393-96 dated 22.05.2018. The petitioners have therefore urged this court by filing these writ petitions for granting them similar benefits.
Ms. S. Chisim, learned counsel on instruction of Mr. C.S. Sinha, learned counsel for the respondents No.5 has acceded to the claim of regularisation by stating that due action to regularise the petitioners against the available post has been taken by the respondent No.5 as would be evident from the communication dated 31.03.2015. None has appeared for the respondents No.1 to 4, neither those respondents have filed their reply to controvert the averments of the writ petition.
There is no controversy in respect of the status of the petitioner either as DRW or as the Contingent Worker (MR worker) and in respect of their completion of ten years of service on diverse dates as reflected in the communication dated 31.03.2015. So far the petitioner in WP(C)No.258 of 2018 namely Uttam Malakar is concerned he had completed ten years of service on 31.08.2015 [see para-5 of the writ petition] or subject to the verification of the records. It is to be noted that during the course of the submission a certificate dated 11.09.2019 issued by the General Manager, Tripura Forest Development and Plantation Corporation Limited has been submitted before this court showing that the said petitioner has been working as DRW(Driver).
There cannot be any amount of confusion that all these writ petitions are substantially covered by the judgments as delivered in Ranjit Malakar(supra) and Aparna Das(supra). It has been noticed by this court that the respondent No.5 has clearly stated in the communication dated 31.03.2015 that total 17 vacancies are available in the various categories against which the petitioners can be regularised.
In Ranjit Malakar(supra) this court had occasion to observe inter alia as under :
"10. As there is no dispute that the petitioner was engaged as DRW on 23.07.2004, which day had been categorically admitted by the respondents in para 5 of their reply, the other pertinent point that has emerged in course of the deliberation is as under:
(i)Whether the petitioner can be regularized in terms of the memorandum dated 21.01.2009 (Annexure R-3 to the reply filed by the respondents).
In paragraph 5 of the reply, the respondents have taken a stand affirmed by affidavit that even the Finance Department concurred the engagement of the DRWs. On that premise, by the memorandum dated 21.01.2009 those persons can be regularized. However, regarding interpretation, this court will definitely will not be guided by the averments made in the reply. But this is a conscious stand taken by the respondents. That apart, what has been submitted by Ms. Lodh, learned Additional GA that by virtue of the notification dated 21.01.2009 (Annexure R-3 to the reply), the petitioner‟s service cannot be regularized. In this regard, this court in Dharamjit Singha vs. State of Tripura [judgment dated 12.07.2017 delivered in WP(C) 1086 of 2016] has observed as under:
"12.To a query to this court, Mr. Sengupta, learned counsel has fairly admitted that those who were appointed as DRW/Casual/Contingent workers without concurrence from the Finance Department before 31.03.2003 were en bloc regularised. By virtue of the casual employment for more than ten years and for fulfilling all criteria as laid down in the memorandum dated 21.01.2009, the petitioner being in the same class like those who were engaged before 31.03.2003. The question therefore now arises is that when the petitioner was permitted to work for more than ten years and he is still continuing and further that when he has been paid from the government fund whether the respondents can deny his status as the casual employee. In such circumstances, this court would have deemed concurrence from the Finance Department but even if such concurrence is not deemed when the casual employees having the similar background have been considered for regularization, the petitioner has been denied only for his appointment being after 31.03.2003. In the perspective, whether the said cutoff date is rational or not is considered by this court. The government policy is very clear from the said memorandum dated 21.01.2009 where it has been clearly provided that the government has taken a policy decision to regularize the services of the full time DRW/Casual/Contingent workers from the next date of completion of ten years of service.
It is evident further that the concurrence of the Finance Department was waived for that class of employees for purpose of age and qualification. The cutoff date therefore according to the respondents has created a special class. It is well settled that unless the cutoff date is shown to be capricious or whimsical, the court does usually provide leeway in favour of the law-makers. But such classification on the basis of that cutoff date shall be founded on an intelligible differentia which distinguishes a person or things that are grouped together from those who are left out of that zone and the differentia must have a rational nexus to the object sought to be achieved by the policy. (In re the Special Courts Bill, 1978 reported in (1979) 1 SCC 380).
True it is that the court should not insist on delusive exactness or apply a doctrinaire test for determining the validity of classification in any given case. When the classification is justified, if it is not palpably arbitrary, the principal underlying the guarantee of Article-14 is not that the same rules should be applicable to all persons or that same remedy should be made available to them irrespective of difference of circumstances. It only means that all persons similarly circumstanced shall be treated alike both in privileges conferred and liabilities imposed. It has been clearly held in Special Courts Bill (supra) that :
"There should not be any discrimination between one person and another, if as regards the subject matter of the legislation their position is substantially the same."
The subject matter of the legislation and the object sought to be achieved can be availed from the memorandum dated 21.01.2009 where it has been clearly stated that the government has taken a policy decision to regularize the services of the full time DRW/Casual/Contingent workers from the next date of completion of ten years of service. From a reading of the memorandum dated 21.01.2009, it would be apparent that the government has insisted to regularize those persons having the similar status but if anyone is engaged after that day i.e. 31.03.2003, their case could be differentiated if they were not allowed to complete the ten years of service. Even the government has subsequently framed a policy to regularize the part time workers to DRWs on completion of ten years of service much after 31.03.2003. Therefore, the subject matter of the policy is completion of ten years of service in the casual employment. The objective is to achieve regularization for those persons who have completed ten years of service thus. By setting up a cutoff date, the persons having similar status cannot be discriminated.
A welfare government is also bound to give protection of the employment. Cut off date is different subject matter and in different contexts may have substantially different impact. Since the respondents did not contest that the petitioner was allowed to continue as the contingent worker for more than ten years, this court does not find any reason why the benefits as provided by the memorandum dated 21.01.2009 should not be extended to the petitioner as well. A welfare government is not expected to take a hyper technical view. But this court does not find any rationality in setting up of a cut off date for completely banning such casual employment to a person. The government has taken a commendable step by giving those casual/contingent employees protection of their service. According to the court, such benefit shall be granted to the petitioner as well. After working for such a long time if a person is thrown out of the job for any reason or even if he does not have the protection of the regularization, it would be a great peril for his dignified survival."
Similar view has also been taken by this court in Ajit Debnath vs. State of Tripura and others [judgment dated 23.06.2017 delivered in WP(C) 1255 of 2016]
What is very unique in this case is that, the Corporation in its 143rd Board‟s meeting has clearly decided for granting post facto sanction of those engagements, but the Finance Department did not aver anything in this regard. With the counter affidavit filed by those respondents, Note no. 38 given by one Under Secretary of the Finance Department has been annexed alongwith the communication dated 05.07.2017. The said note reads as under:
"The Finance Department regrets its inability to concur the proposal of the department because the Government has not taken any policy decision for regularization of the services of the DRW who are engaged after the cut off date 31.03.2003 and also the Government has not taken any decision for regularization of the services of the PTW who were engaged in the undertaking/PSUs".
In the entire reply, this court did not find any averment relating to disposal of the reference made in respect of the ex post facto concurrence by the Finance Department. What the Finance Department has communicated to the Corporation is that in terms of the memorandum dated 21.01.2009, the DRWs/Contingent/Casual workers cannot be regularized. The Finance Department has not given the concurrence as urged for despite the fact that the petitioner was being paid by the Corporation from its own fund. This court is really startled by the approach adopted by the Finance Department.
Having regard to these aspects as surfaced from the inquiry, this court is of the view that the ex post facto concurrence be deemed in this case and in terms of the view expressed by this court in Dharmjit Singha (Supra) in respect of the memorandum dated 21.01.2009, the respondents are directed to regularize the service of the petitioner from the next date when the petitioner has completed 10 years of service in the grade where he has been working as DRW. Such decision shall be taken by the respondents within a period of 3(three) months from the date when the petitioner shall submit a copy of this order."
In Aparna Das(supra), the judgment of Ranjit Malakar(supra) has been relied and observed as follows :
"The said judgment has been implemented by the Tripura Forest Development and Plantation Corporation Limited by its order under No.F.2-5(579)/ESTT/TFDPC-2018/1393-96 dated 22.05.2018. From the said judgment dated 14.07.2017, it would be apparent that the petitioner of that writ petition [Ranjit Malakar] was engaged on 23.07.2004 meaning after 31.03.2003. Having referred the precedents in the context, this court had directed the respondents to regularise the service of the petitioner from the next date when the petitioner had completed ten years of service in the grade where the petitioner had been working as DRW.
The respondents have however stated that the Finance Department has regretted the regularisation of services of the petitioner on completion of ten years of service.
There is no dispute that the petitioner had been working as the MR Worker and she was discharging her duties and responsibilities on full time basis. She served the respondents more than ten years without break. But the respondents have submitted that the petitioner is not entitled to the benefits as claimed. But in their reply, they have admitted that [the respondents No.4 and 5] that in the 143rd Meeting of the Board of Directors their engagement was approved. Even, steps were taken for regularisation of their services but that was regretted by the Finance Department. The respondents No.1 to 4 as it appears from the record did not file any reply.
However, Mr. D. Bhattacharya, learned G.A. appearing for the respondents No.1 to 4 has submitted that the regularisation is not a right, it depends upon the policy of the government. At present, such policies are non-existent as all the memorandum in this regard are revoked prospectively. That apart, Mr. Bhattacharya, learned G.A. has submitted that the Board of Directors can only propose but cannot recruit anyone even by way of regularisation without prior consent of the administrative department and Finance Department.
Mr. C.S. Sinha, learned counsel appearing for the respondents No.5 and 6 has however categorically admitted the fact that the Board of Directors are inclined to regularise the petitioner.
Having appreciated the submission of the learned counsel for the parties, this court finds that when the petitioner had completed ten years of service as MR Worker she could have been regularised following the policy as reflected in the memorandum dated 21.01.2009 [Annexure-2 to the writ petition]. When the Board of Directors has clearly stated that there is existing vacancy to regularise the petitioner, the Finance Department or the Administrative Department would not have stalled the process. Moreover, this court in Ranjit Malakar(supra) has clarified this import of the policy as reflected in the memorandum dated 21.01.2009 and its ramification. When the Board of Directors has proposed for regularisation of the petitioner and others including Ranjit Malakar, the Finance Department would have taken a consistent view. So far this scheme of regularisation is concerned, it is a social welfare policy for regularisation. Thus, the regularisation rules must be given a pragmatic interpretation. In Narendra Kumar Tiwari versus State of Jharkhand and Others reported in AIR 2018 SC 3589 the apex court had observed having considered the constitution bench decision in Umadevi(3) reported in AIR 2006 SC 1806 that irregularly or illegally appointed daily rated workers may not get regular public employment as that would adversely affect those who could be employed in terms of the constitutional scheme. The concept of one time measure was explained in Kesari(supra) (2010) 9 SCC 247. In Narendra Kumar Tiwari(supra) the apex court having taken note of the fact that the State of Jharkhand continued with the irregular appointments for almost a decade after the decision in Umadevi(3) is a clear indication that it believes that it was alright to continue with irregular appointments and whenever required, terminate the service of the irregularly appointed employees on the ground that they are irregularly appointed. This is nothing but a form of exploitation of the employees by not giving them the benefits of regularisation and placing of the sword of Damocles over their head. This is precisely what Umadevi(3) and Kesari sought to avoid. Thereafter in Narendra Kumar Tiwari (supra), the apex court had observed as under:
If a strict and literal interpretation, forgetting the spirit of the decision of the Constitution Bench in Umadevi (3), is to be taken into consideration then no irregularly appointed employee of the State of Jharkhand could ever be regularised since that State came into existence only on 15th November, 2000 and the cut-off date was fixed as 10 th April, 2006. In other words, in this manner the pernicious practice of indefinitely continuing irregularly appointed employees would be perpetuated contrary to the intent of the Constitution Bench.
The High Court as well as the State of Jharkhand ought to have considered the entire issue in a contextual perspective and not only from the point of view of the interest of the State, financial or otherwise - the interest of the employees is also required to be kept in mind. What has eventually been achieved by the State of Jharkhand is to short circuit the process of regular appointments and instead make appointments on an irregular basis. This is hardly good governance.
Under the circumstances, we are of the view that the Regularisation Rules must be given a pragmatic interpretation and the appellants, if they have completed 10 years of service on the date of promulgation of the Regularisation Rules, ought to be given the benefit of the service rendered by them. If they have completed 10 years of service they should be regularised unless there is some valid objection to their regularisation like misconduct etc.
The impugned judgment and order passed by the High Court is set aside in view of our conclusions. The State should take a decision within four months from today on regularisation of the status of the appellants."
The regularisation rules, therefore, be given a pragmatic interpretation and if they have completed ten years of service and the regularisation scheme was still alive [see the circular dated 03.01.2014 [Annexure-3 to the writ petition], the petitioner shall be given the benefit of regularisation as she had completed ten years of service on 01.09.2013, but that was no so done. In the case of Ranjit Malakar(supra) he had completed his ten years of service on 22.07.2014. Considering that the regularisation scheme was alive on the day of his completing ten years of service, this court had directed the respondents to regularise him from the next date when he had completed ten years of service in the same grade where he had been working as DRW/MR Worker. The respondents were further directed that he shall be considered within a period of three months from the date when he shall submit a copy of the order. As stated earlier, the respondents have complied this order with all earnestness. The petitioner is accordingly entitled to the similar benefit.
Hence, the respondents are directed to regularise the services of the petitioner from the next day of her completion of ten years of service i.e. 02.09.2013 in the post of Peon and the order in this regard shall be issued within a period of three months from the date when the petitioner shall furnish a copy of this order. The pay and allowances be accordingly determined."
No occasion has arisen in the meantime to deviate from the said analogy. Hence, in the considered opinion of this court the petitioners are entitled to get the similar reliefs.
Having observed thus, the respondents are directed to regularise the service of the petitioners from the next day of their completion of ten years of service in the post of Peon/Driver having regard to their status as Contingent Worker or DRW within a period of three months from the date when the petitioners shall furnish a copy of this order. The pay and allowances be accordingly determined.
In the result, the writ petitions are allowed.
There shall be no order as to costs.
Pending application, if any, stands disposed of.