Calcutta High Court (Appellete Side)
Dr. Sukhendu Bhaumik vs The State Of West Bengal & Ors on 5 February, 2026
IN THE HIGH COURT OF JUDICATURE AT CALCUTTA
CONSTITUTIONAL WRIT JURISDICTION 2026:CHC-AS:187
APPELLATE SIDE
RESERVED ON: 10.12.2025
DELIVERED ON: 05.02.2026
PRESENT:
THE HON'BLE MR. JUSTICE GAURANG KANTH
WPA 16829 OF 2024
DR. SUKHENDU BHAUMIK
VERSUS
THE STATE OF WEST BENGAL & ORS.
Appearance:-
Mr. Saptarshi Roy, Adv.
Mr. Siddhartha Roy, Adv. ..... for the Petitioner
Ms. Jyotsna Roy Mukherjee, Adv.
..... for the State
Mr. Amales Ray, Sr. Adv.
Ms. Mousumi Bhowal, Adv.
..... for the Municipality
JUDGMENT
Gaurang Kanth, J.:-
1. The Petitioner, by way of the present writ petition, assails the order dated 09.04.2024 passed by the Director of Local Bodies, West Bengal, whereby the Petitioner's claim for grant of pensionary benefits, upon according post facto approval in terms of the circular dated 06.02.2023, was considered pursuant to and in compliance with the direction of this Court dated 18.01.2024 passed in WPA 4262 of 2016. By the said order, the Director of Local Bodies held that the Petitioner is not entitled to regularisation of service or to any retiral benefits.2
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2. The facts leading to the filing of the present writ petition are stated hereinbelow.
3. The Petitioner was appointed as a Residential Medical Officer on probation vide Memo No. 20.17/G dated 13.01.1994 at Dum Dum Municipal Specialized Hospital & Cancer Research Centre by the Chairman, Dum Dum Municipality, pursuant to a decision taken by the Board of Municipal Commissioners/Councillors. The service of the Petitioner was subsequently confirmed with effect from 16.07.1994.
4. All service related entitlements were extended to the Petitioner, and he has been continuously rendering his services without any interruption. There has been no break in service. The Petitioner's service book was duly prepared and maintained in accordance with law. The Petitioner retired from the post of Residential Medical Officer on 31.01.2025.
5. As the Petitioner is entitled to pensionary benefits, and as post facto approval of his appointment is required for such purpose, the Petitioner made several written representations to the Chairman of the respondent Municipality seeking grant of post facto approval.
However, no response was received. Consequently, the Petitioner was constrained to file W.P. No. 4262 (W) of 2016, praying, inter alia, for grant of post facto approval and consequential pensionary benefits upon retirement. The learned Single Judge of this Court, by order dated 10.11.2016, disposed of the said writ petition by directing the respondents to act in terms of the judgment dated 30.01.2008 passed by the Hon'ble Division Bench in MAT 704 of 2007 titled Chairman, Dum Dum Municipality & Ors. vs. Dr. Debranjan Biswas & Anr. 3
2026:CHC-AS:187
6. Aggrieved thereby, the respondents preferred an intra-court appeal being MAT 553 of 2017 (State of West Bengal vs. Rafiqul Islam & Ors.). By order dated 27.11.2017, this Hon'ble Court set aside the order dated 10.11.2016 and remanded the matter for fresh consideration after exchange of affidavits.
7. In the meantime, a similarly situated person, namely Dr. Shakti Lal Chowdhary, filed a writ petition with identical prayers being WPA 4259 of 2016 titled Dr. Shakti Lal Chowdhary vs. State of West Bengal. By order dated 23.03.2022, the learned Single Judge allowed the said writ petition. The respondents challenged the said order by filing an intra-court appeal being MAT 890 of 2022 titled State of West Bengal vs. Dr. Shakti Lal Chowdhary. The Hon'ble Division Bench, by judgment dated 13.10.2023, dismissed the appeal and held that Dr. Shakti Lal Chowdhary, Dr. Asit Ranjan Kudu (the Petitioner herein), and Dr. Priyadarshi Sarkar were appointed against validly created posts by the Municipality in exercise of powers conferred under the West Bengal Municipal Act, 1993. Accordingly, the respondents were directed to process the pension case of the petitioner therein, sanction his admissible retiral dues upon completion of necessary formalities, issue the Pension Payment Order, and grant post facto approval, if necessary, within a period of 12 weeks.
8. In view of the aforesaid judgment dated 13.10.2023 passed by the Hon'ble Division Bench in MAT 890 of 2022, the learned Single Judge of this Court, by order dated 18.01.2024 passed in WPA 4262 of 2016, disposed of the said writ petition by directing the Director of Local Bodies to decide the issue relating to grant of pension in favour 4 2026:CHC-AS:187 of the Petitioner upon according post facto approval, in terms of the circular dated 06.02.2023, within a period of 12 weeks after affording an opportunity of hearing to the Petitioner or his authorised representative. It was further clarified that while taking such decision, the Director of Local Bodies shall follow the order dated 23.03.2022 in WPA 4259 of 2016 and the judgment dated 13.10.2023 passed by the Hon'ble Division Bench in MAT 890 of 2022.
9. In purported compliance with the order dated 18.01.2024, the competent authority afforded an opportunity of personal hearing to the Petitioner and thereafter passed a speaking order dated 09.04.2024, whereby the Petitioner's claim for grant of pensionary benefits, upon according post facto approval in terms of the circular dated 06.02.2023, was rejected, holding that the Petitioner is not entitled to regularisation of service or to any retiral benefits.
10. Being aggrieved and dissatisfied with the said impugned order dated 09.04.2024, the Petitioner has preferred the present writ petition. Submission on behalf of the Petitioner
11. Mr. Saptarshi Roy, learned Counsel appearing on behalf of the Petitioner, submits that the issue involved in the present writ petition is no longer res integra and stands squarely covered by the judgment dated 13.10.2023 passed by the Hon'ble Division Bench of this Court in MAT 890 of 2022 (State of West Bengal vs. Dr. Shakti Lal Chowdhary), which has attained finality. It is further submitted that, notwithstanding the specific directions issued by this Hon'ble Court by order dated 18.01.2024 passed in WPA 4262 of 2016, directing the respondent authorities to act strictly in terms of the aforesaid 5 2026:CHC-AS:187 judgment, the respondent authority has proceeded to pass the impugned order dated 09.04.2024 in complete disregard of the said directions.
12. Learned Counsel for the Petitioner further submits that the respondent Municipality, in its affidavit, has categorically admitted that in the year 1993 there were 200 sanctioned posts. Consequently, by virtue of Section 53(4) of the relevant statute, the Board of Councillors was empowered to create two posts without obtaining prior approval of the State Government. It is submitted that the Petitioner was appointed on 12.01.1994 against one such duly created post. In the aforesaid facts and circumstances, the Petitioner is entitled to the grant of pensionary and other retiral benefits, as prayed for.
Submission on behalf of the Respondent Nos. 3 & 4 (Respondent Municipality)
13. Learned Counsel appearing for the Respondent Municipality submits that, in terms of Section 53(4) of the Act, the Board of Councillors is empowered to create posts up to 1% of the total sanctioned strength in a year without obtaining prior approval of the State Government. It is submitted that in the year 1993 there were 200 sanctioned posts under the Respondent Municipality and, accordingly, the Board of Councillors lawfully created two additional posts in exercise of the powers conferred under Section 53(4) of the Act. The Petitioner was appointed against one such post.
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14. In view of the aforesaid, it is the specific contention of the Respondent Municipality that the Petitioner was appointed against a duly sanctioned post.
Submission on behalf of the Respondent No. 2 (State Respondent)
15. Learned Counsel appearing for the State Respondent submits that the appointment of the Petitioner was not made against a duly sanctioned post. It is further submitted that no prior approval of the State Government was obtained in respect of the said appointment. Consequently, the appointment is contended to be irregular and not in accordance with law, and on such ground the Petitioner is not entitled to claim any pensionary or other retiral benefits. Legal Analysis
16. This Court has heard the learned counsel appearing for the respective parties and has carefully perused the materials placed on record.
17. The Hon'ble Division Bench of this Court, in its judgment dated 13.10.2023 passed in MAT 890 of 2022, held inter alia as follows:
"29. From the affidavit filed by the Municipality, the relevant portion whereof has been extracted above, we find that as on July 1, 1998, i.e., the year immediately preceding the year in which the respondent no. 1 was appointed there were 341 sanctioned posts in Dumdum Municipality. Only 3 appointments were made by creation of posts in exercise of power under sub-section 4 of Section 53 of the 1993 Act, in the following year. 1% of 341 is 3.41. Hence, the Municipality as per the un-amended sub Section 4 of Section 53 of the 1993 Act, could have created up to 3.41 posts without prior approval of the State Government. Since a fraction of post is incapable of creation, the logical conclusion is that the Municipality could create up to 3 posts of officers/employees without prior sanction of the State Government. We find from the affidavit of the Municipality that within the period stretching from 01.01.1998 to 31.08.1998, only 3 officers/employees who did not fall within the meaning of officers as referred to in Section 53(1) of the 1993 Act, were appointed in exercise of power under Section 53(4) of the said Act. They are Dr. Saktilal Choudhury (writ petitioner), Dr. Asit Ranjan Kundu and Dr. Priyadarshi Sarkar.7
30. In view of the aforesaid we must hold that the respondent no. 1 2026:CHC-AS:187 /writ petitioner was validly appointed by the Municipality in exercise of power under section 53(4) of the 1993 Act as that section stood prior to the 2002 amendment. Hence, neither prior sanction of the State Government for appointment of the writ petitioner was necessary nor can he be denied pensionary benefits. The question of the writ petitioner being appointed in a sanctioned vacant post also does not arise as the post in which he was appointed was one validly created by the Municipality in exercise of power conferred on it by the 1993 Act.
31. Accordingly, we agree with the conclusion reached by the learned Single Judge although we disagree with His Lordship's reasoning. We therefore do not interfere with the order under appeal. We affirm the operative portion of the order and direct the appellants to release the pensionary benefits of the respondent. No. 1/ writ petitioner in terms of the order of the learned Single Judge. However, we extend the time period to do so by 8 weeks from date."
18. The Review Petition filed against the aforesaid judgment was dismissed, and no Special Leave Petition has been preferred therefrom. The said judgment has thus attained finality. It is also undisputed that the Respondent Municipality has extended the benefit of the said judgment to the petitioner therein.
19. Applying the ratio of the judgment dated 13.10.2023 in MAT 890/2022 to the present case, it is evident from the affidavit of the Respondent Municipality that in the year 1993 there were 200 sanctioned posts. Consequently, in exercise of the statutory power conferred under Section 53(4) of the 1993 Act, the Respondent Municipality was competent to create two additional posts without obtaining prior approval of the State Government. The affidavit further categorically admits that the Petitioner was appointed on 12.01.1994 against one such post created in exercise of the said statutory power. Once a post is validly created under Section 53(4), it attains the character of a sanctioned post for all legal purposes. The State's contention that the Petitioner was not appointed against a 8 2026:CHC-AS:187 sanctioned post or that prior approval was mandatory is, therefore, wholly untenable and stands rejected.
20. In view of the clear and unequivocal admissions made by the Respondent Municipality and the settled position of law as laid down by the Hon'ble Division Bench, no further issue survives for adjudication. Accordingly, the impugned order dated 09.04.2024 is set aside. Respondent No. 2 is directed to extend to the Petitioner the same pensionary and other retiral benefits as were granted to Dr. Shakti Lal Chowdhary, the writ petitioner in WPA 4259 of 2016, as expeditiously as possible.
21. With the aforesaid directions, the present writ petition stands allowed.
(Gaurang Kanth, J.) SAKIL AMED (P.A)