Calcutta High Court (Appellete Side)
Biplab Kumar Saha vs State Of West Bengal & Ors on 1 December, 2022
S/L 32
01.12.2022
Court. No. 12
Suvayan
WPA 28357 of 2014
With
IA No: CAN 1 of 2016 (Old No. CAN 6998 of 2016)
Biplab Kumar Saha
Vs.
State of West Bengal & Ors.
Ms. Susmita Saha Dutta
Mr. Niladri Saha
...for the petitioner.
Mr. Pinaki Dhole
Mr. K. M. Hossain
...for the respondent nos. 1 & 2.
Mr. Arka Kumar Nag Mr. S. Banerjee Ms. Deboleena Ghosh ...for the respondent nos. 3, 4 & 5.
Learned Advocate for the writ petitioner, learned Advocate for respondent Nos. 1 and 2/State and learned Advocate for the respondent Nos. 3, 4 and 5/Raiganj Municipality and its officials are present.
The present writ application is now taken up for hearing.
In support of instant writ petition, learned Advocate for the writ petitioner draws attention of this Court to the impugned order dated 06.08.2013 as passed by the respondent No. 2 which has been communicated to the present petitioner along with other 13 persons under cover of letter No. 881(15)/DLB/J-402/13-2013 dated 07.08.2013 whereby and whereunder the respondent No. 2 turned down the prayer of absorption of the present writ petitioner and the other 13 persons. Learned Advocate for the writ petitioner submitted before this Court that challenging the said impugned order dated 2 06.08.2013 the other 13 persons had preferred a writ petition before this Hon'ble Court being WP 26486 (W) of 2013 which was dismissed by a co-ordinate Bench of this Hon'ble Court on 08.05.2014. It is further submitted that challenging the said order dated 08.05.2014 an intra- court appeal has been preferred by the said 13 aggrieved persons being AST No. 242 of 2014 and by an order dated 29.01.2018 the said appeal was allowed by the Division Bench of this High Court. It is contended on behalf of the present writ petitioner that since the present writ petitioner stands on the same footing with the 13 appellants of AST No. 242 of 2014, the relief as given by the Hon'ble Division bench in the aforesaid appeal to the said 13 appellants be also extended to the present writ petitioner. Learned Advocate for the writ petitioner, thus, requests this Court to pass an appropriate order in view of her submission as noted above.
Learned Advocate for the respondent Nos. 1 and 2, however, opposes such contention of the writ petitioner. It is argued that since the present writ petitioner was a temporary employee and was working in an unsanctioned post, the present writ petitioner cannot be absorbed in the regular pay role since the respondent No. 2 is not the appropriate authority for creation of post. It is, thus, submitted on behalf of the State that the present writ petition may be dismissed.
Learned Advocate for the respondent Nos. 3, 4 and 5 echoes the version of the learned Advocate for the respondent Nos. 1 and 2.
3
This Court has perused the entire materials as placed before this Court. This Court has given its anxious consideration over the submissions of the learned Advocates for both sides. For effective disposal of the instant writ application a look to the judgment dated 29.01.2018 as passed in AST No. 242 of 2014, vis a vis the subsequent order dated 08.06.2018 as passed in the self- same appeal is necessary.
The operative portion of the AST No. 242 of 2014 is as under:
"In such a situation the Director of Local Bodies West Bengal ought not to have folded his hands and said that he did not have the power to create the posts. He ought to have appreciated the long service of the appellants', its continuity, the right of each one of them to be absorbed in permanent service. Instead of saying that it was the government which could create new posts he should have referred the matter to the appropriate functionary, so that he could take a decision to regularise the services of the appellants. Leave of this court for this purpose may have been taken, before making such a referral.
In that view of the matter we direct the Principal Secretary in charge of the local bodies to forthwith create a sufficient number of posts to absorb the 4 thirteen appellants. The Principal Secretary finance is to accord financial concurrence. The appointments of the appellants be given approval and regularised from a date to be decided by the government. The impugned order dated 7th August, 2013 is quashed.
The impugned judgment and order dated 8th May, 2014 is set aside."
The operative portion of the order dated 08.06.2018 as passed in AST No. 242 of 2014 is reproduced herein below in verbatim:
"Let the third last paragraph of the said judgment and order be corrected by deleting the phrase "from a date to be decided by the Government" and replaced by the following "notionally from their respective dates of appointment, between 1983-1985. The appellants would be entitled to the pensionary benefits only and will have no other claim.
This order should be fully complied with by the respondents within three months of communication of this order.
This order is to be read along with the said judgment and order dated 29th January, 2018.""5
On perusal of the letter dated 07.08.2013 as written by respondent No. 2 addressed to the present writ petitioner as well as to the other 13 persons who are appellants in AST No. 242 of 2014 along with the reasoned order dated 06.08.2013 it reveals to this Court that the footing of the present writ petitioner is same with the 13 persons who are the appellants in AST No. 242 of 2014.
In view of such, this Court has get no hesitation to hold that the facts and circumstances as involved in AST No. 242 of 2014 duly matches to the facts and circumstances as involved in the instant writ petition.
Accordingly, the writ petitioner is entitled to the same relief as has been obtained by the 13 appellants in AST No. 242 of 2014.
Accordingly, Principal Secretary in Charge of the Local Bodies of West Bengal is hereby directed to create a post to absorb the present writ petitioner with effect from the date of joining in his service since it has been reported that the present writ petitioner has been superannuated in the meantime.
The principal Secretary, Finance Department, Government of West Bengal is hereby directed to accord financial concurrence with regard to the creation of post of the present writ petitioner with effect from date of his joining in the service. The appointment of the writ petitioner be given approval and regularised notionally from the date of appointment of the writ petitioner that is with effect from 07.10.1985. It is further ordered that the 6 present writ petitioner is entitled to pensionary benefits including arrear pension along with statutory interest thereon, however, he shall not be entitled to any other claim. It is further directed that the instant order shall have to be complied with by the respondents within three months from the date of communication of this order.
With the abovementioned observation, the instant writ petition being WPA 28375 of 2014 along with all pending interim applications are disposed of.
Urgent photostat certified copies of this order, if applied for, be supplied to the parties upon compliance with all the necessary formalities.
(Partha Sarathi Sen, J.)