Calcutta High Court (Appellete Side)
Mandakini Kuiri & Ors vs The State Of West Bengal Food And ... on 24 August, 2022
Author: Arindam Mukherjee
Bench: Arindam Mukherjee
8 IN THE HIGH COURT AT CALCUTTA
24.08.2022 CONSTITUTIONAL WRIT JURISDICTION
sb
Ct 23 APPELLATE SIDE
WPA 15840 of 2022
Mandakini Kuiri & Ors
Vs.
The State of West Bengal Food and Supplies
Mr. Sabyasachi Chatterjee,
Mr. Sayan Banerjee
.... For the petitioners.
Mr. Sudipto Panda,
Mr. Subrata Ghosh
... For the respondents.
The petitioners were engaged/appointed as Additional Data Entry Operators in terms of an order dated 8th October, 2021, issued by the Joint Secretary, Food & Supplies Department, Government of West Bengal. The engagement/appointment was purely on temporary basis, under individual contract for engagement of manpower between the Food and Supplies Department, Government of West Bengal and each of the petitioners following the directives given in the memorandum dated 22nd July, 2013, issued by the Finance Department, Audit Branch, Government of West Bengal, through its Principal Secretary.
The petitioners were also engaged through a selection process. The appointment letters and/or orders of some of the petitioners which are more or less identical in language are annexed from pages 62 onwards of the writ petition. The memo dated 22nd July, 2013 and the 2 order dated 8th October, 2021 are respectively annexed at pages 59 and 57 of the writ petition.
161 of such Data Entry Operators have joined in this writ petition as petitioners. Full Court fees in respect of 161 writ petitioners have been paid alleging same cause against same set of respondents though their engagement/appointment are under separate contentions. Keeping in mind the principles analogous to Order II Rule 3 of the Code of Civil Procedure, 1908, the petitioners are permitted to jointly move this writ petition.
It will appear from the order dated 8th October, 2021 that the services of the petitioners as Additional Data Entry Operators were availed for Duare Ration, Ration Card Life Cycle Management, Paddy Procurement and other regular establishment work for a period of six months with effect from 1st November, 2021. The order dated 8th October, 2021 was partially modified by an order dated 10th October, 2021, which is annexed at page 55 of the writ petition.
The petitioners say that on 30th April, 2022, the District Controller, Food & Supplies Department, Government of West Bengal terminated the services of all the employees who were appointed under the order dated 8th October, 2021 read with the order dated 10th October, 2021. The petitioners also say that no individual termination letter was issued but only few such Additional 3 Data Entry Operators have received the termination letter.
The petitioners say that by a notice dated 24th June, 2022, issued by the Additional Secretary, Food & Supplies Department, Government of West Bengal, the said Food & Supplies Department has expressed its decision to engage 244 Data Entry Operators to assist the office staff and/or perform duties in the office for data entry and scanning documents, processing the initial works related to ration card and other online services in the portal. The petitioners say that the 244 Data Entry Operators decided to be engaged by the notice dated 24th June, 2022 will perform the same nature of job for which the petitioners were engaged and/or appointed. The petitioners say that the action on the part of the Government, in the instant case, is towards replacing ad hoc employees by another set of ad hoc employees, which is impermissible in law in view of the ration laid down in the judgment reported in (1985) 4 SCC 43 (Rattan Lal and others vs. State of Haryana and others) and (2007) 13 SCC 292 (Hargurpratap Singh vs. State of Punjab and others), which has been recently followed by the Hon'ble Supreme Court in a judgment and order dated 21st April, 2022 delivered in Civil Appeal Nos. 3084-3088 of 2022 (Manish Gupta & Anr. ETC. ETC vs. President, Jan Ghagidari Samiti & Ors. ETC. ETC). The petitioners also say that though there were work for the petitioners in the Food & Supplies Department, Government of West Bengal 4 the petitioners have been terminated to pave way for appointment of ad hoc/temporary employees for the same job under a different coinage. The selection process in terms of the notice dated 24th June, 2022 was to be conducted by Webel Technology Limited (in short, WTL), on the basis of the eligibility criteria fixed by the Food & Supplies Department. The petitioners are, therefor, praying for the notice dated 24th June, 2022 to be set aside and as an interim protection the operation of the same to be stayed. The petitioners are also seeking for extension of their engagement.
On behalf of the respondents, it is submitted that the petitioners were appointed as temporary Additional Data Entry Operators in a time-bound manner to facilitate the specific project mentioned in the order dated 8th October, 2021 read with the order dated 10th October, 2021. The engagement of the petitioners was purely on a temporary basis and were terminated after completion of the project. On the other hand, the appointment sought to be made under the notice dated 24th June, 2022 is towards temporary Data Entry Operators for doing specific work mentioned therein which are different from those performed by the petitioners. The nature of the two works as enumerated in the order dated 8th October, 2021 and the notice dated 24th June, 2022 according to the respondents are different. The petitioners, therefor, cannot draw any parity between their engagements and/or 5 appointments and the appointment/engagement sought to be made pursuant to the notice dated 24th June, 2022. It is further submitted by the respondents that the engagement of the petitioners was as Additional Data Entry Operator and not Data Entry Operator and that for a time-bound method. With the completion of the project described in the order dated 8th October, 2021, the services of the petitioners were not required and, as such their appointments/engagements have been discontinued. After the termination of services of the petitioners, the respondents found that they are in need of Data Entry Operators and as such have decided to appoint such Data Entry Operator under the notice dated 24th June, 2022. The respondents also say that no right has accrued in favour of the petitioners by virtue of their appointments in terms of the order dated 8th October, 2021 for which they can either ask for the subsequent notice to be quashed or for being re-engaged. The respondents further say that the matter of appointment under the order dated 8th October, 2021 and that sought to be made under the notice dated 24th June, 2022 pertain to policy decision of the Government, keeping in mind the requirement and the other factors including the financial implication and as such should not be interfered with by the Court. Moreover, the engagement, according to the respondents, under the order dated 8th October, 2021 was directly by the Food & Supplied Department, Government of West 6 Bengal whereas that sought to be made under the notice dated 24th June, 2022 is through an agency, namely, Webel Technology Limited (in short WTL).
After hearing the parties and considering the materials on record, I find that the distinction sought to be made by the respondents with regard to the work for which the petitioners were engaged and the work for which 244 Data Entry Operators are to be engaged in terms of the notice dated 24th June, 2022 is not available in such clear and unambiguous words. The petitioners were rendered services related to Duare Ration, Ration Card Life Cycle Management, Paddy Procurement and other regular establishment work as Additional Data Entry Operators. Leaving aside the paddy procurement, Duare Ration, Ration Card Life Cycle Management, and other regular establishment work prima facie overlap with the work for which appointments as Data Entry Operators. Even "other online services in the portal" as indicated in the notice dated 24th June, 2022 may include Paddy Procurement as in the order dated 8th October, 2021 are to be made under the notice dated 24th June, 2022. The Data Entry Operators, who will be engaged under the notice dated 24th June, 2022 prima facie appears to me, will perform the duties in the office for data entry which is common to that with "other regular establishment work" mentioned in the order dated 8th October, 2021. The processing of initial work related with 7 ration card and other online services in the portal also appears prima facie common in the "Ration Card Life Cycle Management" mentioned in the order dated 8th October, 2021. Although the petitioners have been described as Additional Data Entry Operators it prima facie appears to me that they were performing the same job which will be assigned to Data Entry Operators to be appointment/engaged under the notice dated 24th June, 2022 and the nomenclature of the post "Additional Data Entry Operator" and "Data Entry Operator" prima facie appears to make no difference owing to the nature of work and engagement. It also appears from the record that the petitioners were engaged through a proper selection process and their nature of engagements and/or appointments that of an ad hoc employee as discussed by the Hon'ble Supreme Court in the judgment (supra). It also prima facie appears that the petitioners are sought to be replaced by another set of ad hoc employees. A Government department in the grab of policy matter cannot also be permitted to act as private/individual employers by terminating ad hoc/temporary appointees to engage other temporary appointees for the similar work. If the action of a Government department appears prima facie to be contrary to the settled principles of law interference is called for even if it is a policy matter though the limited avenue available for interference. The notice dated 24th June, 2022 shows that WTL is only 8 assigned the job of selection to provide a pool of candidates to be ultimately engaged by the Government department. If is not a case that WTL will act as an agency/contractor through when the data entry operators under the notice dated 24th June, 2022 will be engaged.
Considering these aspects, I find that the petitioners have been able to make out a strong prima facie case for further scrutiny of the matter which is possible only after inviting disclosure of the stand of the respondents by way of an affidavit.
The balance of convenience and inconvenience is also in favour of the petitioners. It is also apparent that unless the petitioners are granted an interim protection, the writ petition at the final hearing will not only become infructuous but may also lead to multiplicity of judicial proceedings. Even keeping in mind that Government department may urgently require temporary/ad hoc staff to perform certain set of job, the interim order is required to be passed when illegality has prima facie been demonstrated.
In the aforesaid facts and circumstances, the operation of the notice dated 24th June, 2022 (Annexure P-7 at page 144 of the writ petition) shall remain stayed till the disposal of the writ petition or until further orders, whichever is earlier.
9
Let affidavit-in-opposition be filed by 7th November, 2022. Reply, if any, thereto by 30th November, 2022.
Liberty to mention for inclusion in the list under the heading "hearing" after completion of affidavits or after expiry of the time period granted for filing affidavits, if no affidavits are filed.
(Arindam Mukherjee, J.)