Sajal Kar and Others vs The State of Tripura and Others

S. Talapatra, J.—1. By means of this writ petition, the petitioners who claim to be the casual worker under the Tripura Institute of Technology, Government of Tripura urge this court for direction on the respondent No. 4 in particular for regularising their services in supersession of the communication dated 02.05.2013 and 01.07.2014 respectively (Annexure-P/16 and Annexure-P/23 to the writ petition).

Barring the status of the petitioners, hardly there is any dispute about the material facts. According to the petitioners, by a communication dated 11.10.1999, the Principal, Polytechnic Institute, Narsinghgarh (now the Tripura Institute of Technology) had taken up initiative for regularisation of the existing staffs in the Community Polytechnic, Narsinghgarh. Relevant part of that communication dated 11.10.1999 is reproduced here under:

"Further please note that, in the state of Assam, a number of categories of staffs namely Project Engineer, Asst. Project Engineer, Field Assistance, Driver etc. were engaged in C.P. on regular basis against usual scale of pay exists in the state. The salaries (Copy Enclosed) etc. of the above mentioned Core Staffs are being paid from the M.H.R.D. Grants of C.P. scheme. Since the scheme of C.P. is a temporary one, in case the scheme it-self phased out, the above mentioned staffs of C.P. will be treated as the State Government Employees."

There is no dispute that the similar pattern was not followed in the State of Tripura. Again, the Principal, Polytechnic Institute, the Project Coordinator, by the letter dated 21.02.2000, Annexure-P/2 to the writ petition, communicated to the respondent No. 3 reiterating the necessity of regularisation of the core-staff of the Community Polytechnic. However, in that communication, he has also asserted as under:

"We strongly feel that all such employees of C.P. working on full time basis should be regularised as a regular employees of the State Government against State Scale of Pay commensurating their qualifications and experience. After regularisation, their service may be placed to C.P. and the salaries etc may be drawn from Ministry of Human Resource Development grants in the line of the State of Assam. Papers relating to the regularisation of C.P. Staff under Assam Government creation memo is enclosed herewith for your kind perusal."

From such communication, it appears that for purpose of regularisation the petitioners namely Sajal Kar, Kausik Bhattacharya, Uttam Das and Biplab Dutta were recommended alongwith one Dipak Das. On 12.07.2000, by another communication, Annexure-P/3 to the writ petition, the respondent No. 4 was approached by the Principal, Polytechnic Institute and the Project Coordinator, Community Polytechnic, indicating the qualification and nature of duties as discharged by the core-staffs. However, there were suggestions a galore by the Principal, the Polytechnic Institute and those do not have any relevance in the context of the case. For purpose of record, it is to be indicated that the petitioners along with said Dipak Das made one representation on 12.04.2007 (Annexure-P/4 to the writ petition) to the respondent No. 4, where reference was made to the communications made by the Principal, Community Polytechnic.

The Council of Ministers, in their meeting dated 07.08.2008 deliberated on regularisation of the services of DRWs, Contingent/Casual workers on completion of 10(ten) years of service. It was resolved that the vacancies for reserved categories remained vacant. Those vacancies should be filled by way of regularisation, however, subject to the approval of the Finance Department. The said resolution of the Council of Ministers is rooted in the Finance Department note dated 05.08.2008. Thereafter, a memorandum dated 21.01.2009 was published for regularisation of DRWs/Contingent/Casual Workers who had completed 10(ten) years of service on 31.03.2008. Within the meaning of DRWs, Contingent/Casual workers, the category of permanent labourers, Part time workers, Anganwadi workers, helpers, Home guards, Teachers and the workers engaged under SSA and other schemes/programmes had been excluded.

It further appears that in the said exercise while forwarding the names to the concerned department, Finance Department, the names of the petitioners were omitted whereas the names of Kamal Deb, Tapas Bhattacharjee and Dipak Das were shown as the casual workers. Finally, those persons were regularised under the said scheme of regularisation. From the communication of the respondent No. 4 dated 16.10.2009, Annexure-P/6 to the writ petition, it transpires that the petitioners according to the respondent No. 4, were the contract workers or the honorary workers. However, the Principal-in-charge of Tripura Institute of Technology had been requested to place their exact status to the Finance Department by the communication dated 16.10.2009. The Principal-in-charge, Tripura Institute of Technology sent the petitioners'' particulars designating them as the casual workers in the Community Polytechnic by his communication dated 19.10.2009, Annexure-P/7 to the writ petition. The petitioners also made representation to the respondent No. 4 on 03.03.2010, Annexure-P/8 to the writ petition, for their regularisation in the line of regularisation of those 3(three) persons, namely Kamal Deb, Tarun Sengupta and Dipak Das. Immediately thereafter, by the memorandum dated 29.03.2010, the service of the petitioners along with some other casual workers under the Community Polytechnic scheme were sought to be discontinued with effect from 01.04.2010 in terms of the purported decision of the Higher Education Department, as communicated by the letter dated 27.03.2010. However, on the basis of a fresh instruction, the said order of discontinuation was withdrawn by the corrigendum dated 31.03.2010, Annexure-P/11 to the writ petition. By another communication dated 12.11.2009, Annexure-P/12 to the writ petition, the respondent No. 4 sought specific opinion from the Principal-in-charge, Tripura Institute of Technology, whether the 10(ten) workers including the petitioners working under the Community Polytechnic were contract workers or honorary workers. In reply thereto, the Principal, Polytechnic Institute wrote to the respondent No. 4 on 01.02.2012, Annexure-P/14 to the writ petition, whereby he communicated as under:

"Out of 16(sixteen) Nos. casual workers only 06(six) Nos. casual workers are allowed to draw their monthly remuneration from wages fund vide DHE, Government of Tripura, letter No. F.7(77)-DHE/NG/88(L-10)(Loose-III)/2463, Dated, Agartala, the 12.11.2010 mentioning head of account as 2203-00-105-41-66-02(Wages) under demand No. 39 (Non-Plan) (copy enclosed) even being junior. And out of the rest 10(ten) Nos. casual workers 01(one) namely Late Tapas Bhattacharjee, clerk-cum-typist, has expired suddenly on 12.03.2010. And the rest 09(nine) casual workers are allowed to draw their remuneration from the Professional Service Fund (2203-00-105-41-66-28) instead of wages fund vide DHE, Government of Tripura, letter No. F.7(77)-DHE/NG/88(L-10)(Loose-I)/2694, Dated, Agartala, the 01.12.2010 (copy enclosed).

By this time, Hon''ble Cabinet, Govt. of Tripura, has kindly approved for regularization of service of 10(ten) Nos. casual workers of Community Polytechnic vide Memo. No. F.1(47)-GA(CAB)/2000(Vol.II), dated August-07, 2008 (copy enclosed).

Under the above circumstances and considering the upgradation of TIT and also shortage of trained manpower their services is very much essential considering the students interest and for smooth functioning of academic activities."

[Emphasis supplied]

Again on 03.09.2012, Annexure-P/15 to the writ petition, the Principal, Tripura Institute of Technology had given a detailed report to the respondent No. 4 recording the necessary details of the casual employees working in the TIT. Names of the petitioners appear under the Community Polytechnic (Old Scheme) along with the name of Dipak Das, whereas the name of said Kamal Deb appears under the Infrastructure Development Scheme under the World Bank Project. On 02.05.2013 by the letter, Annexure-P/16 to the writ petition, the Director of Higher Education, the respondent No. 4 herein, communicated to the Principal, Tripura Institute of Technology as under:

"Subject: Regularization of Service of DRWs/Casual/Contingent Worker on the next date of completion of 10 years of service.

Sir,

With reference to the subject mentioned above, I am to inform you that the Administrative Department has been allowed to regularize the DRW/Casual Workers who has completed 10(ten) years services without any break vide Finance Department Memorandum No. F.10(2)-FIN(G)/2008(part) date, 21.01.2009 subject to fulfilment of the following conditions:

i) DRW/Casual/Contingent workers who were engaged on a full time basis in different Department with or without concurrence of Finance Department other than permanent Labour, Part-time workers and Helpers, Home Guards, Teachers and workers engaged under SSA and other Schemes/programmes, may be considered for regularization.

ii) The eligible workers will be provided pay scale in the relevant post who has completed 10(ten) years of services without any break from the date of their joining as Casual Worker.

iii) In the afore-said references, name(s) of the following workers of your establishment are found in the list forwarded by the FD. The status of the following workers are placed as per list of F.D.

Therefore, I would request you to kindly ensure to Estt(NG) Section of this Directorate very shortly if the afore-said workers have fulfilled the above conditions specified by F.D. The reply in this respect are urgently needed so that the Department may take necessary step for regularization of their services without any delay."

It would further appear from another communication dated 06.05.2013, Annexure-P/17 to the writ petition that the Principal, Tripura Institute of Technology had written to the Director, Higher Education Department, Government of Tripura, the respondent No. 4 that 3(three) casual workers, namely Kamal Deb, Tarun Sengupta and Dipak Das who were working as the casual workers in the Group-C or Group-D, though they were engaged without the concurrence of the Finance Department, had been proposed for regularisation as they had completed 10(ten) years of service without any break from the date of their joining as casual worker. One of the casual workers, namely Tarun Sengupta had left the institute few years back. The petitioners for purpose of showing their status as the casual worker, have asserted that they were engaged without concurrence of the Finance Department but prior to 31.03.2003. The petitioners have placed reliance for tracing the source of engagement on the communication dated 15.01.2014, Annexure-P/19 addressed by the Head of the office, Tripura Institute of Technology to the Director of Higher Education, the communication dated 17.01.2014, Annexure-P/20 by the Head of the office, Tripura Institute of Technology to the Director of Higher Education, the communication dated 30.01.2014, Annexure-P/21 written by the Head of the office, Tripura Institute of Technology, addressed to the under Secretary, Finance Department, Government of Tripura. Another communication dated 09.06.2014, Annexure-P/22 addressed to the Joint Director of Higher Education by the Head of the office containing a list of ''all Daily Rated/casual/contingent workers and part time worker/employees of Tripura Institute of Technology, has also been relied by the petitioners. In the said list, the names of the petitioners as well as of Dipak Das are shown under the same category as the casual worker of the Tripura Institute of Technology (formerly, the Polytechnic Institute).

It appears from the said list, christened as the Format-I, that the petitioner No. 1 entered in the service on 16.05.1994 as the casual worker, the petitioner No. 2 entered in the service on 08.04.1994 as the casual worker, the petitioner No. 3 entered in the service on 29.05.1997 and the petitioner No. 4 entered in the service on 01.02.1991. The Finance Department, however, concurred post ex facto the engagements of the petitioners by their communication under Order No. 950/Fin(G)/10 dated 22.09.2010. Dipak Das has been shown in the said Format-I to have entered as the casual worker in the service under the respondents on 04.07.1998 and concurrence of the Finance Department could be had by the order No. 1243/Fin(G)/10 dated 02.11.2010. No distinction whatever has been curved out between the petitioners and said Dipak Das. The petitioners have further relied on a communication by the Joint Director of the Higher Education under No. F.7(269)-DHE/NG/2009(L) dated 01.07.2014, Annexure-P/23 of the writ petition, where it has been communicated as under:

"Subject: Regularization of Service of DRWs/Casual/Contingent Worker on the next date of completion of 10 years of service.

Sir,

With reference to the subject mentioned above, I am to inform you that the Administrative Department has been allowed to regularize the DRW/Casual Workers who has completed 10(ten) years services without any break vide Finance Department Memorandum No. F.10(2)-FIN(G)/2008(part) date, 21.01.2009 subject to fulfilment of the following conditions:

i) DRW/Casual/Contingent workers who were engaged on a full time basis in different Department with or without concurrence of Finance Department other than permanent Labour, Part-time workers, Anganwadi workers and Helpers, Home Guards, Teachers and workers engaged under SSA and other Schemes/Programmes, may be considered for regularization.

ii) The eligible workers will be provided pay scale in the relevant post who has completed 10(ten) years of services without any break from the date of their joining as Casual Worker.

iii) In the afore-said references, name of the following worker of your establishment are found in the list forwarded by the FD. The status of the following worker are placed as per list of F.D. (Copies enclosed)

Therefore, I would request you to kindly ensure to Estt(NG) Section of this Directorate very shortly if the afore-said worker have fulfilled the above conditions specified by F.D. This reply in this respect is urgently needed so that the Department may take necessary step for regularization of his services without any delay.

Joint Director Directorate of Higher Education Tripura"

The petitioners have also placed reliance on the memorandum under No. F.10(2)-FIN(G)/2008(Part) dated 03.01.2014, Annexure-P/18 to the writ petition. The said memorandum deals with the regularisation of the services of the DRWs/Casual workers of various departments, who were engaged on full time basis after 31.03.2003 with concurrence of the Finance Department and those completed 10(ten) years of continuous service. However, from a bare reading of the said memorandum dated 03.01.2014, it clearly transpires that the Government had taken a policy decision to regularise the DRWs/Casual/Contingent Workers, other than Part Time Workers, Contractual/Contract Basis Workers, honorarium Paid Workers, Workers engaged under SSA and other Schemes without concurrence of the Finance Department upto 31.03.2003 in various departments and that category of workers/employee have been thereby declared as eligible for regularization of their services. It has been further declared that no DRW/Casual/Contingent etc Workers are to be engaged after 31.03.2003 without prior concurrence of Finance Department. In para-2 of the said memorandum dated 03.01.2014 the following has been provided:

"In some Departments, DRW/Casual/Contingent etc Workers have been engaged with prior approval of Finance Department on full time basis after 31.03.2003 and some of them by this time have completed 10 years of continuous service. In this connection, proposals are being received from different Government Departments for regularization of the services of such DRW etc workers who are engaged with prior concurrence of Finance Department on full time basis after 31.03.2003 and who had completed more than 10 years of continuous service."

According to the petitioners, they are fully covered by the said policy decision as embodied in the said memorandum dated 03.01.2014 inasmuch as they have been working as the full time casual worker under the Polytechnic Institute, now the Tripura Institute of Technology and various records as produced with the writ petition and as referred above, would clearly establish that at no point of time their status as the casual worker under the Polytechnic Institute though they may be engaged for working under the Community Polytechnic was in question. That apart, all of them have been engaged prior to 31.03.2003.

The respondents by fling the counter-affidavit has stated that while regularising Dipak Das and Kamal Deb, the Director of Higher Education made necessary queries as to the status of their employment and only thereafter their services were regularised in terms of the memorandum dated 03.01.2014. In para-17 of the counter-affidavit, the respondents have stated that the names of the petitioners were sent to the Finance Department for regularisation of their services, but the Government did not consider the regularisation as the petitioners were working under the Community Polytechnic under the Scheme of MHRD and such engagement was not covered by the policy decision contained in the memorandum No. F.10(2)-FIN(g)/2008(Part) dated 01.09.2008, Annexure-R/1 to the counter-affidavit. What the respondents have endeavoured to state in their counter-affidavit is simple and straight viz. i) the petitioners and said Dipak Das and Kamal Deb were situated on different footing and ii) the petitioners were engaged under the scheme of the Ministry of Human Resource Development (MHRD), Government of India and under the policy decision as embodied in the memorandum 01.09.2008 or by a memorandum dated 03.01.2014, the petitioners cannot be regularised.

Mr. Somik Deb, learned counsel appearing for the petitioners has submitted that the contention of the respondents is dehors the records. From the records of the Polytechnic Institute, now Tripura Institute of Technology, it has clearly transpired that the petitioners and said Dipak Das were engaged in the same and similar manner and they had been working in the same scheme. He has further stated that the communication dated 02.05.2013, Annexure-P/16 to the writ petition and the communication dated 06.05.2013, Annexure-P/17 to the writ petition, do not clearly indicate that those persons so regularised were not engaged alike the petitioners. Those are however not in conflict or supercession of the documents viz. the communication dated 03.09.2012 issued by the Principal, Tripura Institute of Technology, where it has been clearly stated that Dipak Das was also working under the Community Polytechnic (under the Old Scheme). Mr. Deb, learned counsel appearing for the petitioners has further submitted that for paying wages of those casual workers the fund was provided by the Ministry of Human Resources Development as well as by the State Government and those funds was utilised for defraying the wages. The respondents have paid the seniormost casual workers from the fund available from the Ministry of Human Resource Development Department (MHRD) whereas the junior casual workers were paid from the fund provided by the Government of Tripura. As such this cannot be considered as the tool for making any difference between the petitioners and Dipak Das or Kamal Deb and Tarun Sengupta. For all purposes, as has been admitted by the Principal, Tripura Institute of Technology, those casual employees including the petitioners whose name have been incorporated in the communication dated 03.09.2012, have been working with the Tripura Institute of Technology before 31.03.2003 and completed 10(ten) years of service.

Mr. Somik Deb, learned counsel appearing for the petitioners has placed his reliance on Secretary, State of Karnataka and Others vs. Umadevi and Others reported in , (2006) 4 SCC 1 to contend that in terms of para-53 of the said decision, the regularisation of the petitioners cannot be denied as they have all served for more than 10(ten) years in the institute as the casual worker and they deserve to be regularised. Moreover, the Govt. of Tripura has framed a scheme for regularisation of the casual workers who are engaged prior to 31.03.2003 for regularisation if they had completed 10(ten) years of service in terms of the memorandum dated 01.09.2008 or as amended from time to time. Reliance has also been placed on a decision of the apex court in Halli Gowda and Others vs. Managing Director, K.S.R.T.C. and Another, reported in , 1989 Supp (1) SCC 267, where the apex court has castigated for not to regularising the senior casual workers were similarly situated, when the junior casual workers had been regularised. It has been also observed that such discrimination based on no analogy and is in conflict with the provisions of Articles 14 and 16 of the Constitution of India. Mr. Deb, learned counsel in this regard, has submitted that the reason so assigned by the respondents cannot be held satisfactory.

While relying on a decision of the apex court in State of Jharkhand and Others vs. Kamal Prasad and Others reported in , (2014) 7 SCC 223, which is based on para-53 of the Secretary, State of Karnataka and Others vs. Umadevi and Others, Mr. Deb, learned counsel has submitted that regularisation by depriving the other eligible persons is wholly untenable in law as the same would perpetrate not only discrimination but also deprivation from their fair living. Such action cannot be accommodated in the fairness in the action.

Mr. B. Dutta, learned counsel has simply reiterated the case as projected in the counter-affidavit. He has stated that since the petitioners were engaged under the Community Polytechnic Scheme they were not covered by the referred regularisation scheme and as such they were not considered.

From the rival contentions, the following questions fall for consideration viz.:

i) Whether the source of engagement as the casual workers of the petitioners and the regularised persons are different to stand out the necessary classification for purpose of denying of regularisation of the petitioners?

ii) Whether the petitioners are also eligible to be regularised under the memorandum dated 01.09.2008, as amended from time to time and the memorandum dated 03.01.2014?

This court does not have any hesitation after scrutiny of the records to hold that the source of engagement of the petitioners and said Dipak Das is same and as such on that respect there cannot be any differentiation as made by the respondents. But that may not provide the necessary corollary to hold that the petitioners are entitled to be regularised under the memorandum dated 01.09.2008 as amended from time to time or under the memorandum dated 03.01.2014. In this regard, this court is again persuaded to hold that for all purposes as it emanates from the records so produced by the Principal or Head of the office, Tripura Institute of Technology, formerly Polytechnic Institute and as those clearly establish that the petitioners and Dipak Das were working as the casual worker in the same source i.e. of the Polytechnic Institute now Tripura Institute of Technology having being engaged as the casual workers before 31.03.2003. They have completed 10(ten) years of service as required. The respondents did not label their engagements as illegal or against the constitutional scheme of the public employment. Their solitary ground for not regularising the petitioners is that they were working under the Community Polytechnic Scheme. It appears that the fund was provided for running the Community Polytechnic, but the casual workers were not solely working in the scheme and they have also working under the Tripura Institute of Technology, formerly Tripura Polytechnic Institute. So it appears from the communication dated 03.09.2012, Annexure-P/15 to the writ petition, where it has been categorically stated that:

"So the cases of such employees of TIT Narsingarh considered may kindly be considered also along with others. All the above employees are hard working and essentially required for Tripura Institute of Technology."

The benevolent scheme for regularisation of such casual workers cannot be frustrated by the technical approach of this nature, rather, it should be read liberally else there would be great injustice. Hence, it is necessary that the petitioners are considered for regularisation under the scheme as reflected by the memorandum dated 01.09.2008 read with the memorandum dated 03.01.2014 as stated.

It has clearly transpired that the petitioners have always been treated as the casual worker of Polytechnic Institute, now the Tripura Institute of Technology and their services were accordingly realised. Still they are so working. Even similarly circumstanced person, namely Dipak Das who has been regularised, was also the casual worker of the Community Polytechnic. Thus, the difference as had been made between Dipak Das and the petitioners is not based on intelligible differentia for purpose of relegating the mandate under Article 14 of the Constitution of India. Hence, in the considered opinion of this court, the petitioners are entitled to be considered by the respondents for regularisation under the memorandum dated 01.09.2008, as amended from time to time.

Having held so, the respondents are directed to consider the regularisation of the petitioners in terms of the memorandum under No. F.10(2)-FIN(G)/2008(Part) dated 01.09.2008 (Annexure-R/1 to the counter-affidavit fled by the respondents) read with the memorandum dated 03.01.2014 (Annexure P18 to the writ petition) and such consideration shall be made within a period of 3(three) months from today, in supercession of the communication dated 01.07.2014 (Annexure-P/23 of the writ petition).

In the result the writ petition is allowed to be extent as indicated above. There shall be no order as to costs.