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2020 Supreme(Tri) 49
IN THE HIGH COURT OF TRIPURA AT AGARTALA
Arindam Lodh, J.
Binoy Bhushan Debnath - Appellants
Vs.
The State of Tripura and Ors.- Respondent
W.P. (C) No. 66 of 2017
Decided On : 10-01-2020
Advocate Appeared:
For the Appellant : A. Bhowmik, Adv.
For the Respondents: D. Bhattacharjee, G.A.
Headnote:
Constitution of India,1950 - Service - Counter affidavit - Contingent worker - Portion of the memorandum - Nut shell, is that petitioner was first appointed as fulltime contingent worker under respondents - State respondents had adopted a policy under memorandum - Decision was taken to regularise the service of fulltime DRWs/Casual/contingent workers from next date of completion of 10 years of service, subject to eligibility - Policy further stipulates that DRWs/Casual/Contingent workers, who were engaged on a fulltime basis in different departments with or without concurrence of Finance Department, their services also would be considered for regularization - Petitioner was engaged in year Column statement showing the name(s) and particular(s) of DRWs/Contingent/Casual/Part-time workers Office of the Dy. Director - Determining date of engagement of petitioner as full-time contingent worker - Petitioner's name was not initially found in list prepared by FCS & CS Department, Government of Tripura which compelled him to file a writ petition before this Court – Held, Government will not help State-respondents for the reason that it was the responsibility of Government to prepare list of eligible persons who were entitled to be regularised in pursuance of the policy - His name was not attached to the list and in my opinion, this was not the fault of petitioner - Relevant records were lying with respondents - Subsequent action of the State-respondents makes it abundantly clear that the petitioner was eligible to be regularised and his name ought to have been shown in the list State respondents had prepared for the said purpose - Records reveal that the engagement of petitioner had received financial concurrence w.e.f., policy as stated petitioner had completed his 10 years of service - concurrence of the Finance Department repel the submission of learned G.A., that the engagement of petitioner was made without concurrence of Finance Department on that date he was engaged as fulltime contingent worker - Petitioner has stated in this writ petition that he was engaged as fulltime contingent workers has failed to place any material before this Court from which date he was engaged as full time contingent worker in the year 1997 – Court direct State-respondents to grant regular pay scale to petitioner that is from the following day of his completion of ten years of service made clear that benefit of said pay scale shall be fixed on notional basis for providing pensionary benefit - Writ petition allowed
JUDGMENT :
Arindam Lodh, J.
1. Heard Mr. A. Bhowmik, learned counsel appearing for the petitioner as well as Mr. D. Bhattacharjee, learned G.A., appearing for the State-respondents.
2. The case of the petitioner, in a nut shell, is that the petitioner was first appointed as fulltime contingent worker under the respondents. The State respondents had adopted a policy under memorandum dated 21.01.2009, wherein a decision was taken to regularise the service of the fulltime DRWs/Casual/contingent workers from the next date of completion of 10 years of service, subject to the eligibility. The policy further stipulates that DRWs/Casual/Contingent workers, who were engaged on a fulltime basis in different departments with or without concurrence of Finance Department, their services also would be considered for regularisation.
3. The petitioner was engaged in the year 1997. From the Column No. 9 of the statement showing the name(s) and particular(s) of DRWs/Contingent/Casual/Part-time workers etc., under the Office of the Dy. Director FCS & CA, Transit Godowns, Dharmanagar, North Tripura, it is revealed that the formal order of such engagement of the petitioner was approved by the Finance Department vide memorandum dated 11.08.2004.
4. Mr. Bhowmik, learned counsel has submitted that the Court may consider the said date, i.e., on 11.08.2004, for the purpose of determining the date of engagement of the petitioner as full-time contingent worker. In that circumstance, in terms of the policy dated 21.01.2009, the service of the petitioner should be treated to be regularised w.e.f., 12.08.2014 that is the 'next date' of the completion of 10(ten) years of service as full-time contingent worker. The petitioner's name was not initially found in the list prepared by FCS & CS Department, Government of Tripura which compelled him to file a writ petition before this Court. However, during the pendency of the said writ petition, the service of the petitioner was regularized but the effect of regular pay scale in terms of policy dated 21.01.2009 was not allowed to him which he was entitled to get in terms of the said policy.
5. On the other hand, Mr. Bhattacharjee, learned G.A., has drawn my attention to the statements made in the counter affidavit submitted by the State-respondents, wherein at para-17 they have stated that there was no formal order as well as concurrence of the Finance Department and the name of the petitioner was not found in the Annexure, which was prepared by the Department to ascertain his eligibility for regularisation. More so, for regularisation, the initial engagement must have the concurrence of Finance Department, Government of Tripura and in the case of the petitioner, the financial concurrence was not there.
6. I have heard the learned Advocates appearing for the parties to the lis and also considered the submissions in regard to the factual aspects and law relating thereof.
7. The nature of controversy leads this Court to have a look to the relevant portion of the memorandum dated 21.01.2009 which may be reproduced here-in-below:-
"The undersigned is directed to inform that the Government has taken a policy decision to regularise services of full-time DRWs/Casual/Contingent Workers from the next date of completion of 10 years of service and fulfill the following criterion as per Department-wise names and particulars attached herewith.
(i) DRW/Casual/Contingent workers who were engaged on a full time basis in different Departments with or without concurrence of Finance Department other than Permanent Labourers, Part-time workers Anganwadi Workers and Helpers, Home Guards, Teachers, are Workers engaged under SSA and other Schemes/Programmes, may be considered for regularization as per names attached..................
(v) Subject to fulfillment of above conditions, the eligible workers will be provided pay scale in the relevant post on the following day of completion of 10 years of service (without any break) from the date of joinin
