Sri Chandan Roy Barman and 35 Others v. The State of Tripura and 2 Others

JUDGMENT & ORDER (ORAL)

Heard Mr. Kawsik Nath, learned counsel along with Mr. Samarjit Bhattacharjee, learned counsel appearing for the petitioners. Also heard Mr. M. Debbarma, learned Addl. G.A. appearing for the respondents-State.

¶2The fact of the case is that the petitioners were initially engaged in the post of Slip/ Casual workers/Drivers and Group-D in different years ranging from 1983-1997 under the respondents and were getting their pay as daily wages. Petitioners submitted various representations for regularization of their services to the Directorate of Health Services, Government of Tripura, but in vain. The Director, Health Services, Govt. of Tripura vide Memorandum dated 30.03.2010 declared all the petitioners as Casual Workers notionally w.e.f. 01.01.2010. It is the contention of the petitioners

that they are squarely covered by the Memoranda dated 01.09.2008 and

21.01.2009 and they are entitled to be regularized on completion of 10 years of service as Casual workers/DRWs/Contingent workers.

¶3They have filed the present writ petition for regularization of their services. The petitioners have filed the present writ petition in the year 2022 claiming regularization of their services on the basis of the memoranda which were repealed by the government in the year 2018.

¶4The petitioners have relied upon certain schemes, introduced by the Government of Tripura for regularization of the services of DRWs/PTWs/Casual/ Contingent, etc. workers which have already been repealed under order dated 31.07.2018 issued by the State.

¶5In the light of above facts, Mr. Kawsik Nath, learned counsel for the petitioners has strenuously argued that for such long continuation of services, the services of the petitioners may be regularized. It is further submitted by learned counsel for the petitioners that the right of the petitioners for regularization was matured long back, but, it was not considered by the respondents.

¶6I have considered the submissions of learned counsel appearing for the parties.

¶7After perusal of the documents annexed with the writ petition, I find that the petitioners were engaged as Slip Workers. They were engaged as Casual workers vide Memorandum dated 30.03.2010 w.e.f. 01.01.2010. The petitioners have failed to justify that they had been appointed against any regular sanctioned vacant posts. The petitioners had been appointed illegally without following the established procedure of law. Furthermore, the petitioners ought to have approached the court within the realm of the scheme and during the existence of the scheme before the date when those were repealed. The delayed approach and lackadaisical attitude of the petitioners would not entail them to get the benefit of repealed schemes. In the opinion of this Court, this petition is absolutely barred by delay and laches. Moreso, the nature of appointment of the petitioners is not only irregular but illegal also. Further, regularization is not a matter of right but a right to be considered by the employer/Government and equality clause

enshrined in Indian Constitution must be followed in sensu stricto. Another important aspect to be noticed that the petitioners have failed to place any material that at present there are sanctioned vacant posts exist in the Health department, Government of Tripura for their absorption or regularization.

8.

Above all, equality clause as enshrined under Articles 14 and 16 of the Constitution of India in the matter of public employment cannot be frustrated or flouted for an indefinite period. As per direction of the Apex Court in State of Karnataka vs. Uma Devi (3) and Ors., reported in (2006) 4 SCC 1, the State Government had formulated guidelines for regularization of Casual/Contingent/Daily Rated workers in the year 2008 with revised guidelines, and, those were continued for long 10(ten) years; however, those were repealed by a policy decision of the Government in the year 2018.

9.

The concept of equality as envisaged under Article 14 of the Constitution is a positive concept which cannot be enforced in a negative manner. When any authority is shown to have committed any illegality or irregularity in favour of any individual or group of individuals, others cannot claim the same illegality or irregularity on the ground of denial thereof to them. Similarly, judgment passed on wrong premise in favour of one individual does not entitle other to claim similar benefits.

10.

I have also considered the directions given by the Constitutional Bench of the Hon'ble Apex Court in the case of Uma Devi(3)(supra) wherein at para 53 it was held thus:- "53. One aspect needs to be clarified. There may be cases where irregular appointments (not illegal appointments) as explained in State of Mysore vs. S.V. Narayanappa, reported in

(1967) 1 SCR 128, R.N. Nanjundappa vs. T. Thimmiah, reported in (1972) 1 SCC 409, B.N. Nagarajan vs. State of Karnataka, reported in (1979) 4 SCC 507, and referred to in paragraph 15 above, of duly qualified persons in duly sanctioned vacant posts might have been made and the employees have continued to work for ten years or more but without the intervention of orders of courts or of tribunals. The question of regularization of the services of such employees

may have to be considered on merits in the light of the principles settled by this Court in the cases above referred to and in the light of this judgment. In that context, the Union of India, the State Governments and their instrumentalities should take steps to regularize as a one time measure, the services of such irregularly appointed, who have worked for ten years or more in duly sanctioned posts but not under cover of orders of courts or of tribunals and should further ensure that regular recruitments are undertaken to fill those vacant sanctioned posts that require to be filled up, in cases where temporary employees or daily wagers are being now employed. The process must be set in motion within six months from this date. We also clarify that regularization, if any already made, but not subjudice, need not be reopened based on this judgment, but there should be no further by-passing of the constitutional requirement and regularizing or making permanent, those not duly appointed as per the constitutional scheme."

11.

A Division Bench of this Court in State of Tripura vs. Suprava Debnath, reported in 2023 SCC Online Tri 833, did not find any illegality or arbitrariness in the policy decision of the government repealing the policy of regularization formulated in the year 2008.

12.

Another noticeable feature is that even the dates of engagements of the petitioners were considered w.e.f. 01.01.2010, they have not completed 10(ten) years of service as Casual Workers before 2018 when all the guidelines for regularization had been repealed by the said policy decision of the Government.

13.

This Court in WP(C) No.5 of 2023 titled as Sri Satya Ranjan Dey and Anr. Vs. The State of Tripura and 4 Ors. decided on 06.09.2023 had passed a detailed order referring many judgments of the Hon'ble Apex Court and held that the petitioners of that writ petition were not entitled to get their services regularized and therefore, dismissed the writ petition.

14.

Thereafter, a Division Bench of this Court (presided over by Justice Aparesh Kumar Singh, Chief Justice and myself) in Suprava

Debnath (supra) had an occasion to deal with the similar issue on regularization wherein after observing all factual and legal aspects, by a detailed order had dismissed the writ petition.

15.

Accordingly, I do not find any merit in the present writ petition and the same stands dismissed.

JUDGE

Rohit SAIKA T KAR by SAIKAT KAR Date: 2023.12.12 16:51:24 +05'30'

HIGH COURT OF TRIPURA AGARTALA WP(C) No.255 of 2022 Sri Chandan Roy Barman and 35 Ors. ….Petitioner(s) Versus 1. The State of Tripura to be represented by the Secretary, Health Department, Govt. of Tripura, New Capital Complex, New Secretariat Building, Agartala, West Tripura, Pin-799001. 2. The Director of Health Services Govt. of Tripura, P.N. Complex, Agartala, West Tripura. 3. The Secretary Finance Department, Govt. of Tripura, New Capital Complex, New Secretariat Building, Agartala, West Tripura, Pin-799001 ….Respondent(s) For the Petitioner(s) : Mr. Kawsik Nath, Advocate Mr. Samarjit Bhattacharjee, Advocate For the Respondent(s) : Mr. M. Debbarma, Addl. G.A. Date of hearing & Delivery of Judgment & Order : 08.12.2023 Whether fit for reporting : No HON'BLE MR. JUSTICE ARINDAM LODH