Allowed

Nikunja Debnath v. the State of Tripura and Anr.

Tripura HC11 Sept 2017WP(C)/13/2017

Case brief

AI extract

What is this about?

The High Court allowed three consolidated writ petitions filed by casual workers in the Social Welfare Department of Tripura. The court held that the petitioners were entitled to regularization under a 2008 government memorandum despite the respondent's classification of them as contract-based workers. The suit provisions for regularization were directed to apply retrospectively from July 1, 2008,

What did the court decide?

Regularization of petitioners w.e.f. 01.07.2008 as Group-D employees and direction to respondents to pay arrears of pay and allowances from 01.03.2014 within three months.

Nikunja Debnath Vs the State of Tripura and… — Pension and Retirement Benefits | Tripura HC (2017)

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THE HIGH COURT OF TRIPURA AGARTALA

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WP(C) NO.13 OF 2017 WP(C) NO.14 OF 2017 WP(C) NO.15 OF 2017

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IN WP(C) NO.13 OF 2017 [

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Sri Nikunja Debnath, son of late Ganesh Debnath, resident of East Gokulnagar, Adarsha Colony, P.O. Harishnagar Tea Garden, P.S. Bishalgarh, Dist. Sipahijala, Tripura

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………… Petitioner - Vs –

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1. The State of Tripura, represented by the Secretary to the Government of Tripura, Social Welfare and Social Education Department, New Secretariat, P.O. Kunjaban, Agartala, West Tripura

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2. The Director,

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Social Welfare and Social Edcuation Department, Government of Tripura, Agartala

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…........... Respondents

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IN WP(C) NO.14 OF 2017 Smt. Arati Debnath , wife of Sri Paresh Debnath, resident of Circuit House, Kunjaban, P.O. Abhoynagar, Agartala, West Tripura

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………… Petitioner - Vs –

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1. The State of Tripura,

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represented by the Secretary to the Government of Tripura, Social welfare and Social Education Department, New Secretariat, P.O. Kunjaban, Agartala

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2. The Director,

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Social Welfare and Social Education Department, Government of Tripura, Agartala

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…........... Respondents

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WP(C)No.13 of 2017, WP(C) No.14 of 2017, WP(C)No.15 of 2017 Page 1 of 8

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IN WP(C) NO.15 OF 2017

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Sri Kanti Lal Debnath, son of Sri Tarani Mohan Debnath, resident of East Gakulnagar, Adarsha Colony, P.O. Harishnagar, Sepahijala, Tripura

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………… Petitioner

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- Vs –

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1. The State of Tripura,

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represented by the Secretary to the Government of Tripura, Social Welfare and Social Education Department, New Secretariat, P.O. New Capital Complex, Agartala,West Tripura

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2. The Director,

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Social Welfare and Social Education Department, Government of Tripura, Agartala

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..........Respondents.

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BEFORE

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THE HON’BLE MR. JUSTICE S. TALAPATRA

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For the petitioners : Ms. A. Chakraborty, Advocate

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For the respondents : Mr. T.D. Majumder, GA

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Date of hearing and delivery of Judgment & order : 11.09.2017 Whether Fit for Reporting : Yes No √

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JUDGMENT & ORDER (ORAL)

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Heard Ms. A. Chakraborty, learned counsel appearing for the petitioners as well as Mr. T.D. Majumder, learned Government Advocate appearing for the respondents.

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WP(C)No.13 of 2017, WP(C) No.14 of 2017, WP(C)No.15 of 2017 Page 2 of 8

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All these writ petitions being WP(C) No.13 of 2017 [Sri Nikunja Debnath Vs. The State of Tripura & Another], WP(C) No.14 of 2017 [Smt. Arati Debnath Vs. The State of Tripura & Another] & WP(C) No.15 of 2017 [Sri. Kanti Lal Debnath & the State of Tripura & Another] are consolidated for disposal by a common judgment in as much as these petitions are set up on a conspectus of resembling facts projecting an identical question of law.

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The writ petitioner in WP(C) No. 13 of 2017 namely Sri Nikunja Debnath was engaged as the full time casual worker in the year 1989 and he has been discharging the duties and responsibilities of a Group-D employee in the Destitutes Home at Abhoynagar.

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In para-5 of the writ petition, the said writ petitioner has averred as under:

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“ That by earning a paltry amount of Rs. 3850.00 after rendering service everyday from evening 7.00 PM till 7.00 AM has reduced the family of the Petitioner to stark poverty, keeping everyone half starved and reducing life below human dignity. But yet the petitioner has continued his service as a casual employees for years with the legitimate expectation that his service would be regularized by the Government who is a model employer. But till date nothing except disappointment has come to greet the Petitioner. Only then the petitioner has decided to take legal aid of the counsel who has agreed to render free legal aid to the petitioner ”

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The writ petitioner in WP(C) No.14 of 2017 namely Smt. Arati Debnath was engaged as the full time casual worker and she has been discharing the duties and responsibilities of a Group-D employee under the respondents from 01.04.1995 and now is posted in the Girls Unit-II of the Government Destitutes Home at Abhoynagar.

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The said writ petitioner has averred in para-5 of the writ petition as under:

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“ That by earning a paltry amount of Rs. 3800.00 after rendering service everyday from evening 7.00 PM till 7.00 AM has reduced the family of the Petitioner to stark poverty, keeping everyone half starved and reducing life below human dignity. But yet the

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WP(C)No.13 of 2017, WP(C) No.14 of 2017, WP(C)No.15 of 2017 Page 3 of 8

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petitioner has continued his service as a casual employees for years with the legitimate expectation that his service would be regularized by the Government who is a model employer. But till date nothing except disappointment has come to greet the Petitioner. Only then the petitioner has decided to take legal aid of the counsel who has agreed to render free legal aid to the petitioner ”

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The writ petitioner in WP(C) No.15 of 2017, namely, Sri Kanti Lal Debnath was engaged in the year 1990 as the full time casual worker and he has been continuously discharging the duties and responsibilities of a Group-D employee under the respondents.

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The said writ petitioner has averred in para-5 of the writ petition as under:

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“ That by earning a paltry amount of Rs.4000.00 after rendering service everyday from evening 10.00 till 5.00 PM has reduced the family of the Petitioner to stark poverty, keeping everyone half starved and reducing life below human dignity. But yet the petitioner has continued his service as a casual employees for years with the legitimate expectation that his service would be regularized by the Government who is a model employer. But till date nothing except disappointment has come to greet the Petitioner. Only then the petitioner has decided to take legal aid of the counsel who has agreed to render free legal aid to the petitioner ”

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Ms. A. Chakraborty, learned counsel appearing for the petitioners has emphatically submitted that the petitioners on numerous occasions approached the authorities in various levels for their regularization in terms of the memorandum under No. F.10(02)FIN(G)/2008(part), dated 01.09.2008, Annexure-1 to the writ petitions, but without any positive yield whatsoever.

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By the said memorandum dated 01.09.2008 the State Government had declared its policy to regularize the services of the fulltime DRWs/Casuals/Contingents workers who have completed 10 years of service as on 31.03.2008 and full-filled the following criteria:

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“i) DRW/Casual/Contingent workers who were engaged on a full time basis in different Departments with or without concurrence of Finance Department and have completed

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WP(C)No.13 of 2017, WP(C) No.14 of 2017, WP(C)No.15 of 2017 Page 4 of 8

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10 years of service as on 31.03.2008 other than Permanent Labourers, Part-time workers, Anganwadi Workers and Helpers, Home Guards, Teachers and Workers engaged under SSA and other Schemes/Programmes, may be considered for regularization as per names attached.

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ii) Requirement of educational qualification as per Recruitment Rules will be deemed to be relaxed for the purpose of this regularization.

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iii) Requirement of educational qualification as per Recruitment Rules will be deemed as relaxed for regularization under Group-D only. In case of DRW/ and contingent Worker who were appointed under Group-C category, educational qualification as required under concerned R.R. must be ensured while entertaining their cases for regularization.

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iv) Except age and educational qualification mentioned in point (iii) all other criterion as per relevant. Recruitment Rules including reservation roster will have to be followed strictly for this process of regularization.

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v) Subject to fulfillment of above conditions, the eligible workers will be provided pay scale in the relevant grade for their regularizations which will take effect from 1^st July 2008.”

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Ms. A. Chakraborty, learned counsel appearing for the petitioners has insisted that despite the petitioners had conformed to the said criteria, they were not regularized arbitrarily. The petitioners are therefore entitled to be regularized w.e.f 01.07.2008 in as much as they had completed 10 years of service as on 31.03.2008. Ms. Chakraborty, learned counsel has further submitted that the said memorandum has been implemented in all other departments but the petitioners were not favoured with the benefits of the said memorandum even though the said policy is equally applicable in the Social Welfare and Social Education (SWSE) department.

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The respondents however having filed the reply have contended that the petitioners were engaged illegally in the service of the department without following any transparent procedure. But they have not denied that the petitioners have continued for a long time and they are still in service. Moreover, it has been asserted that the petitioners are

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not full-time casual workers, they are the contract based workers (the CBW, in short). On expiry of the tenure they were supposed to be terminated but the respondents asserted that “on humanitarian consideration, the petitioners were allowed to continue to work”.

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In this regard, a reference has been made to the memorandum dated 01.09.2008 to contend that the said memorandum does not have any manner of application in respect of the contract based workers. Notwithstanding that position the respondents have initiated a proposal for designating the petitioners as DRWs but the Finance Department has turned down the said proposal on the ground that there is no policy decision to allow contract based workers to engage as DRWs and for those reasons, the respondents have urged this court to dismiss the writ petitions.

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The petitioners by way of rejoinder have filed a list of the employees under the Social Welfare Office, Abhoynagar, which is part of the memorandum dated 19.07.2005, Annexure-2 and the said list is at Annexure-3 of the said rejoinder filed by the petitioners where the petitioners, namely, Sri. Nikunja Debnath and Smt. Arati Debnath are shown as CBWs whereas the petitioner namely Kanti lal Debnath has been shown as the casual worker.

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Mr. T.D. Majumder, learned Government Advocate appearing for the respondents has reiterated again and again that the petitioners are not covered by the memorandum dated 01.09.2008, Annexure-I to the writ petitions as the petitioners are contract based workers. The contract based workers are not covered by the policy of regularization.

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Having appreciated the submission made by the learned counsel for the parties as well as scrutinized the records so produced with the writ petitions and the rejoinder, this Court is of the view that the respondents have unequivocally admitted that even on the expiry of the tenure of the contract the petitioners were allowed to continue in the service as the full time casual workers in as much as in the reply filed by the respondents nowhere the respondents have contested the claim of

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the petitioners that they have been rendering their service as the GroupD employees and working for the full working time.

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Only objection that has been raised in their reply is that the nature of the employment of the petitioners is contractual and hence they are not guided by the said memorandum dated 01.09.2008. When the respondents have admitted that the petitioners were continuing as the casual workers even after the expiry of the tenure they cannot raise an objection on the basis that the petitioners being the contract based workers cannot claim regularization under the memorandum dated 01.09.2008.

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Two aspects those have distinctly surfaced on the face of the records are:

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That the petitioners are working for quite a long time as the casual workers. All the contingent workers or the casual workers are guided by the service contract. There is thin or negligible distinction or no distinction between the casual workers or the contract based workers. Be that as it may, the respondents have failed to produced any piece of paper to show that the petitioners were engaged under any contract. Even the respondents did not make any endeavour to interpret the words 'casual' and 'contingent' as appearing in the Memorandum dated 01.09.2008. For all purposes and having due regard to the records as produced in the rejoinder, this Court is of the view that the petitioners are full time casual workers working under the respondents and had completed 10 years of service much before 31.03.2008 and as such they are entitled to be regularized under the memorandum dated 01.09.2008. Denial of such benefits to the petitioners is arbitrary, discriminatory and is against the Government's own policy. But since the petitioners have approached this Court after a long time from the day when the cause for filing these writ petitions first arose, they will not get the full financial benefit in terms of the memorandum dated 01.09.2008, Annexure-1 to the writ petition. In this context, the respondents are directed to regularize the petitioners w.e.f.

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01.07.2008 as the Group-D employees within 3(three) months from the day when they would receive a copy of the writ petition.

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To fix the pay of the petitioners notionally since 01.07.2008 to the day three years prior to the filing of the writ petition. From the day three years prior to the filing of the writ petitions, the petitioners shall be entitled to get the financial benefits and, hence the respondents are directed to pay their arrears of pay and allowances within a period of 3 months from the date when the petitioners shall submit a copy of this order.

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For purpose of reference, the day of filing the writ petitions are shown below in a tabular of form:

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Sl. No.	No. of the writ petition	Name of the writ petitioner	The Day of filing the writ petition.
1.	WP(C) No.13 of 2017	Sri Nikunja Debnath	03.01.2017
2.	WP(C) No.14 of 2017	Smt Arati Debnath	03.01.2017
3.	WP(C) No.15 of 2017	Sri Kanti lal Debnath	03.01.2017

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Since all the writ petitions were filed on 03.01.2017, the petitioners shall get the financial benefits w.e.f. 01.03.2014.

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Having observed thus, the writ petitions are allowed to the extent as indicated above.

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There shall be no order as to cost.

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JUDGE

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Suhanjit

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Nikunja Debnath v. the State of Tripura and Anr.

Case brief

What is this about?

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Nikunja Debnath v. the State of Tripura and Anr.

Case brief

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