The State Of West Bengal & Ors vs Tapas Chakraborty & Ors on 11 January, 2019

[Cites 7, Cited by 2]

Calcutta High Court (Appellete Side)

The State Of West Bengal & Ors vs Tapas Chakraborty & Ors on 11 January, 2019

1. This is an appeal from a Judgment dated 29th April, 2016 in a writ petition filed by thirty-three persons (the writ petitioners) who were aggrieved by a 2 communication dated 10th May, 2012 issued by the Government of West Bengal to the Chairman of Tamluk (now Tamralipta) Municipality expressing regret in the matter of regularizing the services of the writ petitioners by reason of the decision of the Hon'ble Supreme Court in Secretary, State of Karnataka & Ors. vs. Umadevi (3) and Ors. reported in (2006) 4 Supreme Court Cases page 1. By the impugned judgment, the Learned First Court held that each of the petitioners fell within the exception to the general principle carved out in Umadevi and any irregularity at the time of appointment could be regularized by a later permanent appointment. The Learned First Court accordingly allowed the writ petition by directing that the appointments of the writ petitioners would have to be regularized by the State-respondents with notional effect from the dates of their joining service within three months from the communication of the impugned judgment.

2. The State of West Bengal has challenged the judgment of the First Court and are the appellants before us.

3. It is the case of the appellants that the thirty-three writ petitioners, employees of Tamralipta Municipality, are governed by the provisions of the West Bengal Municipal Act, 1993 and the Rules framed thereunder. It is also the appellants' case that the finding of the Learned First Court that the writ petitioners were appointed between 14th July, 1994 and 15th October, 2000 in the sanctioned posts is contrary to records as no prior approval was obtained from the government before such appointments were made under the 1993 Act or the 3 Rules thereunder. Accordingly, the appointment is illegal and without jurisdiction.

4. Mr. Tapan Kumar Mukherjee, learned Additional Government Pleader appearing for the appellants, submits that there was no evidence before the Learned Judge of the petitioners being appointed in compliance with the Rules and that the petitioners were not approved staff under the West Bengal Municipal Act, 1932 since the posts were filled up without the prior sanction of the State Government. He submits that the Municipality confirmed thirty-three casual employees (the writ petitioners) with effect from 5th August, 1996 in terms of a Government Order dated 10th March, 1996 issued by the Municipal Affairs Department and the petitioners draw salary thereunder from the Municipality. It is further submitted that the State Government, by an order dated 10th March, 2012, rejected the proposal for post facto approval of the petitioners in view of the judgment in Umadevi. It is submitted that the impugned communication was issued by the Director of Local Bodies in reliance of the aforesaid judgment and that the State Government has no power to approve appointments which are illegal as the initial appointment of the writ petitioners with effect from 1st August, 1996 was done without following the 100 point roster and post facto approval for such appointments cannot arise. He further submits that there was no publication of notification of vacancies prior to 5th August, 1996 by constituting Selection Committees with the approval of the State Government. He relies on the proviso (Section 54 (3) of the West Bengal Municipal Act, 1993 before the 1994 Amendment which mandates that no appointments shall be 4 made by the municipality without the prior sanction of the State Government). Mr. Mukherjee submits that the municipality has no power to regularize the service of casual employees and that the Municipality appointed the writ petitioners in August 1996 without approval. He urges that the exception carved out in Umadevi is not applicable to the present case as the State Government in 2012, could not approve appointments made in 1996. He also urges that the appointments for filling up vacancies were not advertised. He says that the municipality facilitated a backdoor-entry of the 33 writ petitioners and it is hence illegal.

5. Mr. Malay Kumar Basu, learned Senior Counsel appearing for the writ petitioners/respondents submits that the reliance placed by the State- respondents on Umadevi is misconceived and has deliberately been done to deprive the writ petitioners of their legitimate retirement benefits. He submits that the instant dispute is not a case of regularization and that the facts of Umadevi do not apply to the instant case at all. According to him, the writ petitioners were appointed to sanctioned posts in 1996 and that similar posts which were created for casual workers in the municipality prior to 31st December, 1991 were subsequently approved by the State Government. He submits that out of these employees, several have now retired and are getting pension. He further submits that the writ petitioners have been mentioned in the staff pattern with their respective names and designations and the state released funds in their favour. He points to the anomaly of the government granting approval in the year 2000 to appointments of persons whose posts were created in 1998. With regard 5 to the argument that the 100 point roster was not followed, he submits that the Rules regarding appointments were framed in 2005 and the 100 point roster under the provisions of Scheduled Castes & Scheduled Tribes Act, 1976 was made in 2011. He further submits that the municipality had approached the government by way of a letter dated 31st August, 1996 for sorting out the seniority of the employees and by a reply dated 2nd September, 1996, the government had informed the Chairman of the Municipality of the mode of regularizing the absorption of the workers and maintaining the seniority amongst the writ petitioners. He submits that the government did not refuse to pay the salaries of the writ petitioners also taking into account the revisions of salary from time to time. He relies on the Government Order dated 7th May, 2009 whereby the municipalities were directed to take steps for post facto approval of those employees whose appointments were approved. He states that the writ petitioners were within the pay scale mentioned in the government order of 7th May, 2009 which entitled them to get post facto approval in terms of the State Government order.

6. Mr. Chatterjee, learned Counsel appearing for the Tamluk (Now, Tamralipta Municipality) submits that the writ petitioners were initially engaged by the municipality on a casual basis in a scheme for augmenting water supply between 1989 and 1991. The mode of their appointment and/or absorption in service was done in compliance with the Government Order dated 10th March, 1996. The workers were appointed pursuant to a meeting of the Board of Councillors held on 31st October, 1989 wherein twenty-eight workers were 6 appointed and another nine workers were appointed by a Second Resolution dated 30th November, 1989. All thirty-three workers were appointed on a casual basis on a fixed pay of Rs. 500/- per month until sanction was given by the Higher Authorities. It is submitted that the workers had to be engaged on an emergency basis since the project of supplying water to the people of the locality had to be done on a priority basis. By a meeting dated 31th August, 1992, the Board of Councillors decided to confirm the service of the casual workers against the posts sanctioned by the Higher Authorities for proper maintenance of the project.

7. Mr. Chatterjee further submits that the writ petitioners had the requisite qualifications for the respective posts on the date of appointment to perform the job of casual workers in the Water Supply Augmentation Scheme and that the petitioners have been rendering continuous service upon drawing salaries and other allowances as per government norms without any interruption till date. He submits that the petitioners were taken in against sanctioned posts which were made by the Recruitment Rules for municipal employees and framed by the State Government in 2005 and further that the Government Order dated 10th March, 1996 was issued before the requirement of publication of vacancies was laid down by the Hon'ble Supreme Court in the case of Excise Superintendent in 1996. He further submits that by a letter dated 2nd September, 1996, written in response to a communication from the Chairman of the municipality, the Deputy Director of Local Bodies confirmed that casual employees who were working on or before 31st December, 1991 should be absorbed in accordance with the sanction 7 of the staff strength made by the Director of Local Bodies considering their seniority in service, experience and educational qualification. According to him, the requirement of prior approval of the State Government before appointment of municipal employees was inserted by way of an amendment only on 1st October, 2003 and hence would not apply in the facts of this case since the writ petitioners were appointed on casual basis between 1989 and 1991 and absorbed in service in 1996. Counsel reiterates the point taken by Mr. Basu (appearing for the writ petitioners) that the services of twenty identically placed casual employees of the Municipality who were absorbed before 1992 against posts sanctioned vide order dated 21st December, 1998 have already been approved by the State Government as reflected in the G.O. dated 12th September, 2000. He raises the additional point that particulars of all the workers/staff of the municipality were furnished to the Director of Local Bodies, including requisition for arrears of pay pursuant to the pay revision in 2009. The said particulars contained the names of all the thirty-three writ petitioners and others placed in similar circumstances who had not received formal approval. The required funds for meeting the claim of arrears was also disbursed by the State Government. He relies on a communication dated 30th September, 2011 by the Joint Director of Local Bodies seeking approval of appointment of forty employees of the municipality including the writ petitioners which is on record. Counsel further relies on a Gazette Notification dated 20th August, 2003 in relation to the West Bengal Municipal (Employees, Death-cum-Retirement Funds) Rules, 2003 which does not contemplate that the service of the employees of the municipality must 8 be approved by the State Government/Director of Local Bodies for qualifying for pension and other retirement dues.

8. We have considered the submissions of counsel appearing for the appellants, the writ petitioners and the Municipality. We find that in the impugned order, the Learned First Court has taken into consideration all the dates which are relevant for the appeal before us. In summary, these dates are; the thirty-three writ petitioners (respondents herein) were appointed between 1994 and 2000 against sanctioned vacant posts. On 10th March, 1996, a departmental order was issued by the Municipal Affairs Department stating that these employees would be eligible for absorption in the sanctioned Group-C posts. On 7th May, 2009, the Governor authorised the Director of Local Bodies to issue post facto approval of appointments made by the municipalities against sanctioned vacancies; on 31st September, 2011, the Joint Director of Local Bodies wrote to the Director of the Local Bodies as well as Joint Secretary of the Government of West Bengal, Municipal Affairs, requesting that these posts may be taken into consideration as sanctioned, on 10th May, 2012, by the impugned communication issued by the Government of West Bengal to the Chairman of Tamralipta Municipality, the regularization of the petitioners was rejected.

9. The factor which primarily weighed with the Learned First Court was that the writ petitioners had rendered uninterrupted service for almost two decades. But more specifically, that the dictum of the Hon'ble Supreme Court in Umadevi has been misconstrued by the State Government. The Learned Judge was of the 9 view that the writ petitioners came within the exception carved out in Umadevi namely that where the employee was appointed observing all formalities against a vacant post and had rendered long and continuous service without intervention of a court, the irregularity in the initial appointment could be regularized subsequently by way of a permanent appointment. In this connection, the Learned Judge relied on two later decisions of the Supreme Court in State of Jharkhand vs. Kamal Prasad reported in (2014) 7 SCC 223 and Amarendra Kumar Mohapatra vs. State of Odisha reported in (2014) 4 SCC 583. The learned First Court upon considering the aforesaid decisions was of the view that each of the petitioners fell within the exception to the general principle laid down in Umadevi and therefore directed that the appointments of the writ petitioners would have to be regularized by the State-respondents with notional effect from their respective dates of joining as mentioned in the recommendation of the Joint Director of Local Bodies in the communication dated 30th September, 2011 within a specific time frame. The Learned Judge also directed that the four retired employees would be paid pension and other retirement benefits but could have no claim with regard to the arrear or salary.

10. The law laid down by the Supreme Court in Umadevi was concerned with regularization claimed as a right by temporary employees on the basis of long and uninterrupted service. The temporary employees claimed that they had a right to be regularized under the Directive Principles and the Fundamental Rights enshrined in the Constitution of India. The Constitution Bench of the Supreme Court held against the temporary employees but carved out an 10 exception in the decision by drawing a distinction between irregular and illegal appointments. The Supreme Court was of the view that the question of regularization of the service of employees whose appointments have been irregular may have to be considered on merits in light of the principles settled by the Supreme Court and that the Union/State Governments should take steps to regularize such appointments as a one-time measure. The Supreme Court gave particular emphasis to those employees who had worked for ten years or more in duly sanctioned posts but not under orders of Court. It was further clarified that regularizations already made need not be re-opened based on the judgment in Umadevi. In a later decision of State of Jammu & Kashmir and Ors. Vs. District Bar Association, Bandipora reported in (2017) 3 SCC 410 (relied upon by Mr. Chatterjee for the Municipality), a three-member bench of the Supreme Court, drew a distinction between irregular and illegal appointments where the latter category was held to be tainted by a lack of fair process in the matter of the recruitment. Instances where appointments were made without the Administration being compelled to make such appointments or where the procedure adopted was violative of equality of opportunity and fair play or the recruitment smacked of mala fides would stand vitiated as being illegal. In this decision, the Supreme Court, in fact, went further and questioned why appointments not vitiated by any of the aforesaid should not be regularized under a scheme framed by the employer not to be bar for the executive or legislator from framing a scheme of regularization.

11. We must also refer to a decision of 30th November, 2018 of the Supreme Court in the State of Bihar Vs. Kirti Narayan Prasad (again a three-member bench) in Civil Appeal No. 8649 of 2018 arising out S.L.P (Civil) No. 24742 of 2012, where the controversy centred around the issue of whether the writ petitioners had been legally appointed. Relying upon an opinion of the State Committee, the Supreme Court held that the appointments were illegal and void since the appointments were secured by producing forged documents. It was in these facts that the Supreme Court held that the exception carved out in paragraph 53 of Umadevi would not be applicable.

12. The decisions referred to by the learned First Court in State of Jharkhand Vs. Kamal Prasad reported in (2014) 7 SCC 223 and Amarendra Kumar Mohapatra Vs. State of Odisha reported in (2014) 4 SCC 583, applied the exception of Umadevi in the respective fact situations and with the common ground that the employees had rendered long and continuous service without intervention of courts and hence the regularizations were in order. In Amarendra Kumar Mohapatra, the Supreme Court was considering the constitutionality of certain sections of the Odisha Service of Engineer (Validation of Appointment) Act, 2002 with regard to regularization and other aspects.

13. The issue before us is whether the decision of the learned First Court in regularizing the appointments of the writ petitioners in the background of paragraph 53 of Umadevi and the two other decisions mentioned in the impugned judgment, is amenable to challenge. Having gone through the documents shown by the parties before us, we find no basis for holding that the writ petitioners fall 12 outside any of the exceptions laid down in Umadevi; that they have worked for ten years or more; that the services have been rendered in duly sanctioned posts without the protection of any court order and that they possessed the minimum qualification stipulated for the appointment as explained later in the decisions of State of Karnataka Vs. M.L. Kesari reported in (2010) 9 SCC 247. We have not come across any material to hold that the appointments of the writ petitioners were illegal or have been tainted with the vice of arbitrariness. Further, we cannot close our eyes to the regularization of twenty other similarly placed casual employees of the Municipality absorbed in sanctioned posts by a Government Order dated 21st December, 1998, who have subsequently been approved by the State Government as reflected in the Government Order dated 12th September, 2000. In fact, seven out of these twenty employees have retired and are receiving pensionary benefits. The approval, under The West Bengal Municipal Act, 1993 as amended, issued by the Joint Secretary to the Government of West Bengal refers to those employees as "pre 1992 Casual Workers in the sanctioned vacant posts".

14. We cannot also disregard the fact that the appellants were all along made aware of the particulars of the writ petitioners, whose details were furnished by the Municipality to the Director of Local Bodies, including a requisition for arrears of pay. The letter dated 30th September, 2011 issued by the Joint Director of Local Bodies, Burdwan Division to the Director of Local Bodies and Joint Secretary to the Government of West Bengal, Municipal Affairs, had specifically recommended that some of the posts mentioned in the said communication "may 13 be taken into consideration as sanctioned". The concerned respondent should therefore at least be estopped from contending to the contrary before us. There is no question of the appellants being in the dark of the status of the writ petitioners and the fact that they have been in continuous and uninterrupted employment with the Municipality since 1994. We do not wish to dwell again on the series of communications between the Municipality and the appellants which would substantiate the aforesaid but express our concern that applying different standards to employees placed in similar circumstances has the potential of creating sub-groups which would reflect an arbitrary application of the rules of fair play in action and diffuse the clarification made in Umadevi. The reasons which persuaded the appellant to bestow the benefit of the exception in Umadevi to a particular group while denying the same to another without any factual difference for such a distinction are not apparent from the documents on record. What can possibly be the special circumstances which could have persuaded the State to apply different principles to employees placed in similar circumstances at different points of time? The appellants do not have a satisfactory answer to this question in the absence of which we have no hesitation to confirm the impugned judgment of the First Court.

15. We also consider it relevant to note that the decision in Umadevi was pronounced by the Hon'ble Supreme Court on 10th April, 2006. The impugned communication from the Director of Local Bodies to the Chairman, Tamluk Municipality dated 10th May, 2012, mentions the decision in Umadevi for the first time after six years. The communications issued by the appellants after Umadevi 14 declared the law on the subject, did not mention Umadevi at all in the intervening six years. In fact, the order of 7th May, 2009 issued by the Special Secretary, Department of Municipal Affairs is required to be set out:-

"Now, therefore, the Governor, for quick disposal of all pending cases, is pleased hereby to authorize the Director of Local Bodies, West Bengal to issue orders according post-facto approval of appointments/promotions made by the Municipalities against sanctioned vacancies holding erstwhile Scale of Pay of Rs.380-910/-, since revised to Rs.4000-8850/-, and below within the aforesaid period on case to case basis after due examination/enquiry."

16. In view of the above reasons, the appellants are to comply with the direction passed by the learned Single Judge in regularizing the appointments of the writ petitioners within three months from the date of communication of this order. The employees who have retired will be paid their pension and retiral benefits from the dates when such pension became due to the concerned employee as reflected in the records of the Municipality.

17. The appeal is, accordingly, dismissed. There shall be no order as to costs.

Urgent photostat certified copy of this judgment and order, if applied for, be supplied to the parties on priority basis.

(MOUSHUMI BHATTACHARYA, J.) (BISWANATH SOMADDER, A.C.J.)

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Calcutta High Court (Appellete Side)