Calcutta High Court (Appellete Side)
Pabitra Kumar Mandal vs The State Of West Bengal & Ors on 11 July, 2016
Author: I.P. Mukerji
Bench: I.P. Mukerji
IN THE HIGH COURT AT CALCUTTA
Constitutional Writ Jurisdiction
Appellate Side
W.P. No. 5735 (W) of 2013
Pabitra Kumar Mandal
Vs.
The State of West Bengal & Ors.
For the petitioners:- Mr. Surajit Samanta..Adv.
Mr. Biswajit Samanta...Adv.
For the KMC: - Mr. Alok Kr. Ghosh..Adv.
Mr. Arijit Dey...Adv.
Judgement On: - 11th July, 2016
I.P. MUKERJI, J
This is the third writ by Pabitra Kumar Mandal. He belonged to the West
Bengal Registration and Stamp Revenue Service. He retired from office on 28th
February, 2011.
Under Section 187 of the Kolkata Municipal Act, 1980, the Kolkata Municipal
Corporation has been given the power to appoint officers to determine annual
valuations of buildings, subject to the approval of the State government. On
31st May, 2011, the Governor issued a notification under this provision
appointing, amongst other persons, the writ petitioner as a Hearing Officer for
the above purpose. The notification stated that the age of retirement would be
62 years.
On 16th December, 2011, while the writ petitioner was still working the
Governor by notification extended this age up to 65 years. He was to retire on
28th February, 2013 on completion of 62 years of age. The notification of 16th
December, 2011 was published in the Calcutta Gazette on 19th December,
2011.
The wordings of this notification are very important.
The notification is as follows:
ORDER
"The Governor was pleased hereby to extend the permissible age of the objection Hearing Officers under section 187 of the Kolkata Municipal Corporation Act, 1980, up to 65 years and to direct that the appointment at a time will be for a period of one year only, subject to renewal." The petitioner wanted to work up to 65 years.
The Corporation was not willing to continue his service beyond 62 years. He along with others filed a writ in this Court which was numbered as WP 770 (W) of 2013 (Dinesh Kumar Kukhopadhyay & Ors. v. State of W. B. & ors.). On 15th January, 2013, in that writ, this court directed consideration of the representation of the petitioners for extension of his service. On 22nd January 2013 the Municipal Commissioner rejected this representation on the ground that it had adopted the policy of taking new Hearing Officers. A second writ was instituted by the writ petitioner alone (W.P. No. 2475 (W) of 2013 Pabitra Kumar Mandal v. The State of West Bengal & Ors.). By an order dated 31st January 2013 passed by this court, the Corporation was directed to decide the matter afresh. Nothing was said in the order about this so called policy of the Corporation. The Corporation gave a token hearing to the writ petitioner as directed by this court, but was very quick to affirm its earlier policy and decision, that the renewal clause in the notification gave the Corporation a right at the end of every year either to renew or not to renew the service of a hearing officer, at its free will. This applied to the writ petitioner. The Deputy Municipal Commissioner in his order dated 18th February, 2013 went to the extent of saying that further to an advertisement dated 27th March, 2012, 63 Hearing Officers had been empanelled by the Corporation. Hence, this third writ.
Mr. Alok Kumar Ghosh for the Corporation cited State Bank of Bikaner and Jaipur and Others, v. Jag Mohan Lal, reported in AIR 1989 SC 1975. It was a bank case. The age of retirement was 58 years. Regulation 19 governing service stipulated that the Bank could, at its discretion extend the period of service The Supreme Court stated the following in paragraph-12:
" The bank has no obligation to extend the services of all officers even if they are found suitable in every respect. The interest of the bank is the primary consideration for giving extension of service. With due regard to exigencies of service, the bank in one year may give extension to all suitable retiring officers. In another year, it may give extension to some and not to all. In a subsequent year, it may not give extension to any one of the officers. The Bank may have a lot of fresh recruits in one year. The bank may not need the service of all retired persons in another year. The Bank may have lesser work load in a succeeding year. The retiring persons cannot in any year demand that "extension to all or none". If we concede that right to retiring persons, then the very purpose of giving extension in the interest of the bank would be defeated. We are, therefore, of opinion that there is no scope for complaining arbitrariness in the matter of giving extension of service to retiring persons."
The judgement of the Supreme Court is easily distinguishable. The petitioner in that case was a permanent employee of the bank. The retirement age was 58 years. The bank had an option of extending the service period of its employees selectively. The petitioner, in that case was seeking extension beyond the retirement age. In this case the petitioner is not seeking any extension beyond the retirement age of 65 years. The ratio of the Supreme Court is that the discretion of an employer to extend the service period after the age of retirement is discretionary. In the present case, the service conditions were peculiar. It was more or less a contractual service. The age of retirement was extended till 65 years. Yet, the service was sought to be renewed from year to year, by the same act.
A fair and reasonable meaning has to be given to these service conditions. The appointment notification of the petitioner dated 31st May, 2011 stated that he was appointed as a Hearing Officer till the last date of the month in which he attained the age of 62 years. There was no break in this service period. The notification dated 16th December, 2011 extended the tenure up to 65 years and directed that the appointment at a time would be for a period of one year only subject to renewal.
First of all, this notification has to be given prospective effect. The word "and" in the new notification is disjunctive, the word "appointment" refers to new appointees, in my opinion. My interpretation of this notification is one year duration subject to renewal up to the age of 65 years, for the appointees appointed on and after the date of the notification. Those who were working could work up to 65 years. The tenure of the petitioner was simply extended up to 65 years.
Secondly, even if an interpretation is made of the notification that the appointment would be for one year at a time, subject to renewal, those who were working had to be given automatic renewal, unless there was some fault on their part. Those who were working, without blemish could not have been discharged without proven fault.
The Deputy Municipal Commissioner states in his impugned decision dated 18th December, 2013 that whilst the petitioner was in employment an advertisement was published by the Corporation for taking new Hearing Officers. There is no illegality in taking new Hearing Officers. But this ought not to have been done at the expense of those who were working without blemish. No misdemeanour is even alleged against the petitioner. Hence, the Corporation could only fill up the existing vacancies and not discharge the existing Hearing Officers including the petitioner to create vacancies. It is here that the action of the Corporation has become arbitrary, unfair and most unreasonable.
In my opinion, the writ petitioner's service was wrongly terminated. He has now crossed 65 years of age. The writ petitioner is entitled to damages. I direct the Kolkata Municipal Corporation to make payment of the entire salary and allowances that the petitioner would have earned from the date of his discharge till the date of his retirement on the last day of the month of his attaining 65 years within three months from date. This writ application is allowed to the above extent.
Urgent certified photocopy of this Judgment and order, if applied for, be supplied to the parties upon compliance with all requisite formalities.
(I.P. MUKERJI, J.)