Calcutta High Court (Appellete Side)
(Siddhesar Malik & Ors vs The State Of West on 31 January, 2019
Author: Subrata Talukdar
Bench: Subrata Talukdar
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31.01.19
02 Ct. No.26
Sws.M
W.P. 27944(W) of 2016
(Siddhesar Malik & Ors. vs. The State of West
Bengal & Ors.)
Ms. Ananya Neogi
Mr. Pradip Sanyal
Mr. Guddu Singh
.......for the petitioners
Mr. Biswajit De
Ms. Shabana Hasin
...for the State
Mr. Uttiya Ray
....for the Respondent Nos. 3 to 7
Party/Parties appear in the order of their name/names as printed above in the cause-title.
In this writ petition prayer is made by the petitioners for absorption as regular employees with all consequential service benefits under the then Bardhaman Zilla Parishad and now Purba Bardhaman Zilla Parishad (BPZP).
Ms. Neogi, learned Advocate appearing for the petitioners, submits that the petitioners were engaged in casual capacity as long back as in1978-79. Learned Advocate next submits that the petitioners are therefore 2 entitled to be absorbed in terms of Labour Department Circular No. 1700-EMP dated 3rd August, 1979.
Under challenge in this writ petition is the inaction on the part of the PBZP to take steps for redressing the grievances of the petitioners as directed to be taken by an Order of the Hon'ble Court dated 7th October, 1996 deciding an earlier writ petition bearing C.O. No. 8636(W) of 1993.
Ms. Neogi submits that the continuity of the long service of the petitioners beyond ten years and above shall be evident from the fact that by an order dated 28th April, 2015, (to take effect from 1st May, 2015) the PBZP had utilized the service of the petitioners, among other casual staff, to its different sections/ internal departments. On the basis of the order dated 28th April, 2015, it is emphasised by the petitioners that they enjoy long continuity of service.
Learned Advocate for the petitioners also relies upon a Supplementary Affidavit (SA) filed pursuant to leave granted by this Court. In the SA the petitioners rely upon the Memo of the Audit Branch, Finance 3 Department, Government of West Bengal, dated 16th September, 2011, bearing Memo No. 9008-F(P).
On the strength of the Memo dated 16th September, 2011, Learned Advocate for the petitioners submits that since they have been working in casual capacity for much above ten years and nearly thirty years now, they are entitled, in the alternate, at the least to benefits permitted by the Memo dated 16th September, 2011 (supra).
On behalf of the Respondents, appearance is put in by Mr. Ray, learned Counsel on behalf of the PBZP and Mr. De, learned Counsel for the State-Respondents.
The argument is adopted by both the Respondents that the petitioners do not qualify to the absorption in terms of the law laid down In Re: Secretary, State of Karnataka & Ors. vs. Umadevi (3) and others (for short hereinafter referred to In Re: Umadevi), (2004)6 SCC 1.
Having heard the parties and considering the materials placed, this Court finds as follows:- 4
(A) That admittedly the petitioners are in service for a period much beyond ten years; (B) That admittedly such service is in casual capacity under the PBZP ;
(C) That admittedly the law on
regularisation/absorption has since been
interpreted In Re: Umadevi (supra) ; (D) That the law has provided a window of opportunity to enable the regularisation of the petitioners as stated in Paragraph 53 of In Re:
Umadevi. Paragraph 53 reads as follows: (53) One aspect needs to be clarified. There may be cases where irregular appointments (not illegal appointments) as explained in S.V. Narayanappa, R.N. Nanjundappa and B.N. Nagarajan and referred to in para 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 the courts or of tribunals. The question of regularisation 5 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 abovereferred 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 regularise 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 the 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 regularisation, if any already made, but not sub judice, need not be reopened based on this judgment, but 6 there should be no further bypassing of the constitutional requirement and regularising or making permanent, those not duly appointed as per the constitutional scheme."
(E) That admittedly this Court is of the clear view that in the event the prayer of the petitioners for regularisation/absorption in terms of Paragraph 53 In Re: Umadevi (supra) is found not sustainable by the Respondents/PBZP, the petitioners having continued in service far beyond ten years can be considered as eligible to receive benefits under the Memo dated 16th September, 2011, in the event such Memo is applicable to the PBZP as an establishment/statutory body of/ under the State Government.
On the basis of the above findings, the matter is now remanded to the Secretary, PBZP/ the Respondent No. 6 to take a reasoned and just decision on the issue, not later than a period of 12 weeks from the date of communication of this order.
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W.P. 27944(W) of 2016 stands accordingly disposed of.
There shall, however, be no order as to costs. Urgent certified copies of this order, if applied for, be given to the parties upon compliance of all necessary formalities.
(Subrata Talukdar, J.)