Calcutta High Court
Smt. Pratima Sarkar vs State Of West Bengal And Ors. on 15 June, 1990
Equivalent citations: (1991)2CALLT282(HC), (1992)IILLJ702CAL
JUDGMENT Susanta Chatterji, J.
1. The present writ petition has been filed praying inter alia for a Writ of Mandamus commanding the respondents to consider the case of the petitioner to get absorbed in the regular establishment of Typist in the officer of the respondent No. 4, Sub-Divisional Land Reforms Officer, Katwa and further commanding the respondents to allow the petitioner to work as Typist in the office of the respondent No. 4 accordingly. There is further a prayer for quashing the impugned order being Annexure "H" to the writ petition. It is stated in detail that the petitioner was working for more than required number of days as Typist in the office of the respondent No. 4 and yet she has not been absorbed in the regular establishment. There is allegation that the respondents sought to terminate the service of the petitioner and in such circumstances, the petitioner filed a previous writ petition which was disposed of by Mahitosh Majumdar J. directing the petitioner to make a representation within 7 (seven) days from the date of passing of the order and also directing the respondents to consider the said representation within 4 (four) weeks after giving the opportunity of hearing and passing a reasoned order and communicate the same to the petitioner. The said communication is Annexure 'H' to the present writ petition. Being aggrieved again, the petitioner has come to this Writ Court by challenging the aforesaid communication.
2. The writ petition is contested by the respondents Nos. 1 and 4 by filing affidavit. It is disclosed therein that the petitioner was engaged as a contingent on August 13, 1986 on daily wage basis for 3 (three) days in a week upto September 12, 1986. It is further disclosed that in the year 1986, the petitioner worked for 62 (sixty-two) days and this period of work was never continuous for 3 (three) days in a week and in the year 1987 she worked as contigent mainly for 238 days and thus functioning was also not continuous. In the year 1988, however, the petitioner worked for 250 days on daily wage basis. It is claimed that the petitioner worked for 3(three) days or 5(five) days a week indicating that a Typist is not permanently required in the office of the Sub-Divisional Land Reforms Officer at Katwa. There is a reference of the Government Order No. 1700-Emp. dated August 3, 1979 and also Government Order No. 1650-Emp. dated August 28, 1980. According to the writ petitioner, the petitioner is entitled to get the benefit provided that the applicant must be in service on August 3, 1979 and that the applicant must be engaged in perennial type of work and the applicant must be engaged for the continuous period of more than 3 years at least 240 days in each calendar year. The calender year will be presumed from January to December. It is also disclosed that the job of "Typist" in the office of the respondent No. 4 is not permanent in nature and the same will reveal from the different letters of engagement addressed to the writ petitioner from time to time that she worked not continuously but always with certain breaks, in view of the fact that there is no sanctioned post of Typist in the S.L.R.O. Office at Katwa. The marginal notes will also corroborate the fact that the petitioner was daily rated contigent worker on "No work, no pay basis" for specific days in a week. Her term of engagement was thus extended from time to time in that perspective with regular breaks and according to the requirements and the said fact is a corroborative evidence of irregular requirement of Typist.
3. Mr. Bidyut Kumar Banerjee, learned Advocate appearing for the petitioner, has urged at length that the petitioner was engaged as Typist on August 13, 1986 after rendering 2(two) years voluntary service and was styled as contingency worker on daily wage basis. From time to time, the petitioner's service as Typist styling as contingency worker was extended and last extension was made by Memo No. 1378/LR dated December 7, 1988 requiring the petitioner to work as such upto March 7, 1989. If the year reckoned, according to him, from the date of her official appointment with effect from August 13, 1986, then the petitioner has worked for more than 2(two) years having had in service more than 240 days a year. In 1987, the petitioner rendered service for 240 days which will appear from the Attendence Register and further the petitioner worked for 250 days in 1988. The nature of work and the continuity of work will indicate that the job is of perennial nature and the claim of the petitioner cannot be negatived. He has drawn the attention of the Court that the writ petitioner applied for a regular post according to the recruitment notice issued by the Collector, Burdwan and the petitioner's said application was duly forwarded by the respondent No. 4 to the Appropriate Authority treating the petitioner as departmental candidate as would be evident from Annexure "D" to the writ petition. The petitioner did not make any attempt to get her name sponsored by Local Employment Exchange. The order of rejection by the Sub-Divisional Officer in terms of the Memo No. 143G dated February 28, 1989 is contrary to law and in fact it will transpire from the materials on record that the petitioner has fulfilled all the conditions and the petitioner is otherwise entitled to reliefs as prayed for.
4. Mr. Ganguly appearing with Mrs. Sukiran Biswas for the State respondent has argued at length that the post is not perennial in nature and the petitioner has not rendered sufficient days to get the benefits of the relevant circulars and the writ petition may be rejected.
5. Having heard the learned Lawyers of both sides and upon perusal of the materials on record, this Court finds that the petitioner filed an application addressed to the Collector, Burd-wan through S.L.RO., Katwa writing clearly that she was working as a Typist in the office of the S.L.R.O., Katwa since last 5(five) months as per Order of the Sub-Divisional Officer, Katwa under Order No. 666 dated August 13, 1986 and prior to joining the post she worked as a Typist in the said office since 1984 voluntarily. The said application was forwarded by the S.L.R.O., Katwa without any reservation and rather he recommended the case of the petitioner recording with her performance as satisfactory and the applicant is working at the office as Typist but engaged on daily wage basis. The factual aspect of the voluntary service of the petitioner since 1984 is thus admitted. It is not explained as to why a person rendering voluntary service since 1984 and thereafter being engaged officially in 1986 on daily wage basis and rendering sufficient days of work in each year will be deprived of being absorbed by applying the relevant Government Order and appreciating the Government policy in this behalf.
6. It is clear that the Government adopted a policy with retrenchment of casual workers already employed as such and engaged in perernnial nature of job should not be normally resorted to. It is not appreciated in view of the materials on record that the work of a Typist in the officer of the respondent No. 4, Sub-Divisional Land Reforms Officer, Katwa is not perennial in nature. The typing job in modern day administration is a must. Besides, the office has been utilising the services of the petitioner since 1984 and undisputedly since 1986 regularly and consistently. The conscience of the Court is convinced that the post of Typist is of importance and it is of perennial in nature.
7. By looking further in depth, it is found that the petitioner has been rendering the necessary days of service each year although an attempt has been made on the part of the respondents to claim for a break of service which is nothing but a feudalistic approach to deny the rights of a casual employee. The present day jurisprudence and the adopted plicy of the Government and the directive principles as enshrined in the Constitution of India do not encourage employment of casual workers when there is perennial nature of work. Since life includes livelihood, the security of service is a great factor. This important aspect cannot be lost sight of.
8. The State respondents produced records of the case and by looking at the materials in depth, this Court finds that the petitioner has put in sufficient number of days to obtain the benefits for being regularised. The reasons assigned in the impugned order (copy of which is Annexure 'H' to the writ petition) are found not justified. The approach of the concerned respondent to consider the representation is erroneous inasmuch as there is an attempt to deny the petitioner's right to be absorbed and the entire assessment has been made in a step-motherly fashion instead of considering the case of the petitioner sympathetically. With great hopes of getting an employment, the petitioner rendered voluntary service in the Government office from 1984 and she has worked on a daily wage basis from 1986 and it is not appreciated that in 1989 she would be asked to go out unceremoniously. It has to be remembered that in modern India, the scope of employment is very much limited indeed. The person trying to survive by shedding his or her blood and sweat through employment, finds the employment as an illusion. It sometimes escapes inspite of the best efforts. In the instant case, the petitioner at all material points of time, has rendered service in a perennial type of work to the greatest satisfaction of his superiors and still she is in great predicament while the scope of regularisation of her service arises. This Court is fully convinced that the representation of the petitioner has not properly been considered and the impugned communication (copy of which is Annexure 'H' to the writ petition) cannot be sustained. This Court is of the view that a proper case has been made out where intervention of a Writ Court is all the more necessary, otherwise a bona fide person like the petitioner will be denied to be absorbed in her regular employment.
9. For the foregoing reasons, the writ petition is allowed. There will be Writ of Mandamus commanding the respondents to absorb the petitioner as a regular Typist in the office of the respondent No. 4 and the respondents concerned will sanction the post, if not done already. There will be no order as to costs.