Calcutta High Court (Appellete Side)
Haradhan Bera & Ors vs The State Of West Bengal & Ors on 6 October, 2010
Author: Pranab Kumar Chattopadhyay
Bench: Pranab Kumar Chattopadhyay
1
IN THE HIGH COURT AT CALCUTTA
CONSTITUTIONAL WRIT JURISDICTION
APPELLATE SIDE
Present:
The Hon'ble Justice Pranab Kumar Chattopadhyay
And
The Hon'ble Justice Md. Abdul Ghani
W.P.S.T. 1894 of 2008
Haradhan Bera & Ors.
Versus
The State of West Bengal & Ors.
For the Petitioners: Mr. Arabinda Chatterjee,
Ms. Ishita Chakraborty
For the State. : Ms. Chameli Majumder,
Mr. Swarup Pal.
Heard On: 26.08.2010 & 21.09.2010
Judgment On: 06.10.2010.
PRANAB KUMAR CHATTOPADHYAY, J.
The petitioners herein were engaged as Tahasil Mohurriors on casual basis in Sabang, in the district of Medinipur now in Paschim Medinipur.
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From the records we find that the said Sabang Block was divided into 31 Tahasil Blocks for the purpose of smooth collection of land revenue, cess, etc. 31 Tahasildars were also appointed by the then Junior Land Reforms Officer, Sabang. The said post of Junior Land Reforms Officer has now been re- designated as Block Land and Land Reforms Officer.
The aforesaid Tahasildars with the consent of the then Junior Land Reforms Officer, Sabang appointed Tahasil Mohurriors during the period between 1975 and 1980 on temporary basis and they were allowed to work in that capacity of Tahasil Mohurrior upto 1984 when the aforesaid posts were abolished.
The Tahasil Mohurriors have been engaged to assist the Tahasildars for the purpose of collection of land revenue, cess, loan and surcharge, etc. The Tahasil Mohurriors like the petitioners herein were allotted work for about four months in a year. All the Tahasil Mohurriors used to draw a fixed remuneration for the said four months in each year @ Rs. 75 per month that is Rs. 300 per year along with Rs. 50 as ex-gratia in each year.
It has also been submitted on behalf of the Tahasil Mohurriors that they used to get commission @ 0.3% on the total collection of land revenue, loans etc. in the event the said 3 collection exceeded Rs. 8,000/- in a year. The aforesaid commission was, however, denied to those Tahasil Mohurriors who failed to collect even Rs. 8,000/- in a year.
The Block Land and Land Reforms Officer, Sabang specifically stated the aforesaid facts in a written communication to the District of Land and Land Reforms Officer Medinipur under Memo No. 40/S-17/98-2000 dated 11th January 2000.
The petitioners herein claimed absorption in the regular establishment pursuant to the scheme formulated by the Land and Land Reforms Department, Government of West Bengal and mentioned in the Memorandums dated 15th October, 1998 and 30th November, 1999. Pursuant to the aforesaid scheme, a Tahasil Muhurrior became eligible for absorption in the regular establishment only after rendering service for a period of five consecutive years on attaining the age of 18 years.
The authorities herein, however, rejected the claim of the petitioners for absorption on the ground that none of the petitioners had worked for five consecutive years on attaining the age of 18 years.
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It is the specific case of the petitioners that necessary applications were submitted by them in prescribed manner within the prescribed period under the aforesaid scheme but those applications were not considered by the competent authority in an appropriate manner.
In the aforesaid circumstances, petitioners herein filed application before the West Bengal Administrative Tribunal for issuance of appropriate directions. The learned Tribunal upon considering the submissions of both the parties and scrutinizing the relevant documents dismissed the said application on merits on 15th September 2008.
Assailing the aforesaid judgment and order passed by the learned Tribunal, instant writ application has been filed by the petitioners herein.
Pursuant to the earlier order passed by the learned State Administrative Tribunal, claims of the petitioners for absorption in the regular establishment as Group-D staff were considered by the Land Reforms Commissioner and Principal Secretary to the Government of West Bengal. The said Land Reforms Commissioner and Principal Secretary to the Government of West Bengal passed necessary orders separately in respect of each of the petitioners 5 herein, rejecting the claim for absorption in the regular post of Group-D staff under the said department on the ground that the said petitioners did not render uninterrupted and continuous five years service as Tahasil Mohurriors on attaining the age of 18 years which was the mandatory requirement for absorption in the regular establishment in terms of the Memorandums dated 15th October, 1998 and 30th November, 1999.
The learned Counsel representing the petitioners, however, submitted that neither the Land Reforms Commissioner nor even the learned Tribunal properly examined the relevant records while rejecting the claims of the petitioners herein. Mr. Arabinda Chatterjee, learned Counsel representing the petitioners, submitted that all the petitioners had worked continuously for a period of five years as Tahasil Muhurriors which have been duly certified by the competent authority, namely the concerned Block Land and Land Reforms Officer, Sabang. Mr. Chatterjee also referred to and relied on the report which was submitted by the District Land and Land Reform Officer, Medinipur being Memo No. 40/S-17/98-2000 dated 11th January, 2000.
Mr. Chatterjee in support of his contentions referred to the report of the Additional District Magistrate and District Land and Land Reforms Officer, Medinipur which was submitted to the 6 Director of Land Reforms and Survey under Memo dated 6th May, 1999 wherein it has been specifically mentioned that all the petitioners herein had fulfilled the requisite criteria for absorption in the regular establishment as Group-D staff under the scheme.
Mrs. Chameli Majumder, learned Counsel representing the State-respondents, however, submitted that the relevant circulars relating to the scheme specifically stipulates that the available papers should be carefully scrutinised and therefore, the competent authority had scrutinised all the available papers and other corroborative records while considering the claims of the petitioners for absorption in the regular establishment in Group-D post. Mrs. Majumder further submitted that the concerned authority had examined the validity and/or legality of the individual claims of the petitioners herein on the basis of the available records, which the petitioners had produced before the concerned authority. Mrs. Majumder also submitted that the petitioners herein did not render service continuously at least for 5 years and could not produce any corroborative record at the time of hearing in support of their claims.
Block Land and Land Reforms Officer, Sabang, Medinipur under Memo No. 40 dated 11th January, 2000 submitted a report to the 7 Additional District Magistrate and District Land and Land Reforms Officer, Medinipur wherein it has been stated that the petitioners and several other Tahasil Mohurriors had worked continuously for a period of more than 5 years during the period in question since their engagement. It has also been specifically mentioned in the said report of the Block Land and Land Reforms Officer, Sabang that the continuity in service in respect of the aforesaid Tahasil Mohurriors cannot be detected from the Commission Register since the names of the Tahasil Mohurriors who could not collect Rs. 8,000/- or above were not mentioned in the said Commission Register.
The aforesaid report of the Block Land and Land Reforms Officer is set out hereunder:
" GOVERNMENT OF WEST BENGAL
OFFICE OF THE B.L.&.L.R.O. SABANG
PO. SABANG, DT. MIDNAPORE
Memo no. 40/S-17/98-2000 Dt. 11.1.2000
To
The District Land and Land Reforms Officer,
Midnapur.
Sub : Regarding verification of particulars of Tahasil Mohurrirs under this Block.
Ref : Your office memo no. 19565/A-179/98 dtd. 24.11.98 & 3785-808/A-69/95 dtd. 1-2-96 And This office memo no. 118 dt. 31.1.96, 211 dtd.
29.2.98, 1032 dtd. 26.11.98 and 302 dtd. 25.3.99. Sir, 8 With due respect I beg to draw your kind attention stating the fact as follows:-
i) That this Block was divided in 31 part Tahasil Block for convenience of smooth collection of land revenue, cess, loans and surcharges etc, and also 31 Tahasildar were appointed by the then authority i.e. erstwhile J.L.R.O. Sabang.
ii) That thereafter the all Tahashil Mohurrirs were appointed by the Tahashildars in consent of the authority in the year between 1975 and 1980 on temporary basis and in that capacity they worked up to 1984 being the date when such posts were abolished after introduction of integrated Set Up of Land Reforms Administration in the State of West Bengal.
iii) That according to them the nature of works of Tahashil Mohurrirs had been engaged to assist the Tahashildar in collection of Land Revenue, Cesses Loan and Surcharge etc. for workup for about 4(four) months in a year. For their such work all Tahashil Mohurrirs used to draw a fixed monthly remuneration for the said 4 (four) months @ Rs. 75/- i.e. Rs.
300/- per year up to 1984 from their engagement. And since 1979 as per order of the authority they got a fixed yearly remuneration as Ex-Gratia @ Rs. 50/- only till to 1984 continuously.
In this regards as per your kind order under, memo ref. above a lot of books and registers which was available to this end has sent to your end for favour of your kind perusal. Other desired books and registers which was so much essential for the same perhaps those are missing or lost in any unavoidable circumstances. But so far it is come to my knowledge that the all Tahashil Mohurrirs were done the work as temporary basis as stated above continuously and also they were not discontinued since their engagement, which has duly informed by proforma report in the time to time to your end under this office memo no. 118 dt. 31.1.99 and 211 dtd. 29.2.96 as per your kind order.
Hence it is stated that their continuity will not to be detect as per commission register, because the then authority declared that "they will get commission @ 0.3%, according to their collection of Land Revenue, Loans, etc. above Rs. 8000/- in a year" on that way who collected the same above Rs. 8000/- they are to be defrauded from the said commission and unfortunately their names are not to be alluded in the commission register.
In this respect the list of 24 Tahashil Mohurrirs who are alive still now out of 31 alongwith mentioning their periodical working bio-data is hereby furnished as enclosure.
In view of the above fact the undersigned has requested you to look into the matter personally to your good sympathetic heart so that the service of enlisted mohurrirs may be treated as continued workers in job allotted to them up to 1984 since their engagement.
Yours faithfully, Sd/-
(Block Land & Land Reforms Officer) Sabang Midnapore"
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The Additional District Magistrate and District Land and Land Reforms Officer, Medinipur in his report dated 6th May, 1999 declared the petitioners as eligible Tahasil Mohurriors and included their names in Category 'A' wherein the names of all eligible Tahasil Mohurriors who worked for 5 years or more were mentioned. The relevant portions from the said report of the Additional District Magistrate and District Land and Land Reforms Officer, Medinipur are set out hereunder:
"........................... All the Bill Registers and other relevant Registers were collected from B.L.& L.R.O. Offices But it is to state that almost all the Register are torned and not maintain properly. All registers of all the years are not available at B.L.& L.R.O. Sadar and Gopiballavpur. I could not send the Register for 5(five) years and no Register of any kind of papers were received from B.L. & L.R.O. Keshpur (Or erstwhile J.L. & L.R.O. Anandapur) as a result after proper hearing of all individual cases the lists of eligible Tahasil Mohurriors are prepared and marked as category "A" "B" & "C". In category "A" all eligible Tahasil Mohurrior working for five (5) years or more or stated..........................."
On examination of the aforesaid report including the enclosed list we find that the names of the petitioners herein have been specifically mentioned in Category 'A' who have been declared as eligible Tahasil Mohurriors for working continuously for a period of 5 years or more.
The Land Reforms Commissioner and Principal Secretary to the Government of West Bengal while rejecting the claims of each one 10 of the petitioners herein for absorption in the regular post of Group-D specifically held that none of the petitioners rendered uninterrupted and continuous five years service as Tahasil Mohurriors on attaining the age of 18 years which was the mandatory requirement for absorption in the regular establishment in terms of the circular issued by the Land and Land Reforms Department, Government of West Bengal in the year 1999. Unfortunately, the said Land Reforms Commissioner and Principal Secretary to the Government of West Bengal did not consider the aforesaid reports of the Block Land and Land Reforms Officer, Sabang dated 11th January, 2000 and the Additional District Magistrate and District Land and Land Reforms Officer, Medinipur dated 6th May, 1999 properly.
The Block Land and Land Reforms Officer, Sabang and the District Land and Land Reforms Officer, Medinipur are the custodians of the records in respect of the petitioners. The said Block Land and Land Reforms Officer, Sabang and Additional District Magistrate and District Land and Land Reforms Officer, Medinipur on examination of the available records in respect of all individual cases specifically declared that the petitioners herein had rendered uninterrupted and continuous service as Tahasil Mohurriors for a period of five years or more on attaining the age of 18 years. The aforesaid findings of the competent 11 authorities, namely the Block Land and Land Reforms Officer, Sabang and the District Land and Land Reforms Officer, Medinipur cannot be ignored although unfortunately, the Land Reforms Commissioner and Principal Secretary to the Government of West Bengal failed to take note of the aforesaid specific findings of the concerned authorities, namely Block Land and Land Reforms Officer, Sabang and District Land and Land Reforms Officer, Medinipur while considering the claims of the petitioners herein.
For the aforementioned reasons, we hold that the concerned authority did not examine its own records meticulously in order to decide the genuineness of the claims of the petitioners herein for absorption in the regular establishment as Group-D staff.
The learned Tribunal also unfortunately did not consider the aforesaid reports of the competent authorities, namely Block Land and Land Reforms Officer, Sabang and District Land and Land Reforms Officer, Medinipur and illegally rejected the claims of the petitioners for absorption in the regular establishment as Group-D staff.
In the aforesaid circumstances, we are unable to approve the impugned decision of the learned Tribunal.
12For the reasons discussed hereinabove, the impugned orders passed by the Land Reforms Commissioner and Principal Secretary, Land and Land Reforms Department, Government of West Bengal, in respect of each one of petitioners herein stand quashed. For the identical reasons, the impugned judgment and order passed by the learned Tribunal also cannot be sustained and the same is, therefore, set aside.
Mrs. Majumder, learned Counsel of the State-respondents, however, submitted that the petitioners herein are not entitled to be absorbed in Group-D posts pursuant to the circulars issued earlier by the Government of West Bengal in view of various decisions of the Hon'ble Supreme Court since those circulars are opposed to the constitutional scheme of public employment. Referring to the decision of the Supreme Court in the case of Secretary, State of Karnataka & Ors. Vs. Uma Devi (3) & Ors reported in (2006) 4 SCC 1, Mrs. Majumder submitted that High Court should not pass any order directing absorption, regularisation or permanent continuance of temporary, contractual, casual, daily wage or ad-hoc employees appointed dehors the constitutional scheme of public employment. Mrs. Majumder further submitted that the circulars dated 15th October, 1998 and 30th November, 1999 cannot override Article 16 of the Constitution and, therefore, claims of the petitioners for absorption in the regular 13 establishment as Group-D staff in terms of the aforesaid circulars cannot be granted.
Mrs. Majumder specifically referred to and relied on paragraphs 4, 6 and 37 of the aforesaid judgment of the Supreme Court in the case of Secretary, State of Karnataka & Ors. Vs. Uma Devi (3) & Ors (supra). In Paragraph 37 of the aforesaid judgment, the Hon'ble Supreme Court observed:
"37. It is not necessary to multiply authorities on this aspect. It is only necessary to refer to one or two of the recent decisions in the context. In State of U.P. v. Neeraj Awasthi this Court after referring to a number of prior decisions held that there was no power in the State under Article 162 of the Constitution to make appointments and even if there was any such power, no appointment could be in contravention of statutory rules. This Court also held that passed alleged regularisation or appointment does not connote entitlement to further regularisation or appointment. It was further held that the High Court has no jurisdiction to frame a scheme by itself or direct the framing of a scheme for regularisation. This view was reiterated in State of Karnataka v. KGSD Canteen Employees' Welfare Assn."
Mrs. Majumder referred to and relied on the following decisions of the Supreme Court in support of her arguments:
1) (2007) 5 SCC 524 [Mahadeo Bhau Khilare (Mane) & Ors. vs. State of Maharashtra & Ors.] (Paragraphs 2 to 12) 14
2) (2007) 5 SCC 317 [Post Master General, Kolkata & Ors. vs. Tutu Das (Dutta)] (Paragraphs 12, 13 & 15)
3) (2008) 10 SCC 1 [Official Liquidator vs. Dayanand & Ors.] (Paragraph 75) We fail to understand how the aforesaid decisions can be of any assistance in deciding the issues raised in the instant writ petition.
The petitioners herein were unfortunately denied regularisation in terms of the scheme by the authorities concerned along with other eligible Tahasil Mohurriors in the year 2001 in absence of any valid reason. It has been specifically urged on behalf of the petitioners that the authorities concerned had wrongfully and illegally rejected the claims of the petitioners for regularisation under the scheme in the year 2001. According to the petitioners, if the authorities concerned had acted properly in the year 2001 upon proper appreciation of the available records then there could not have been any occasion to deny absorptions of the petitioners under the scheme.
It has been argued on behalf of the petitioners that the respondent authorities had committed mistakes by not considering its own records properly while rejecting the claims of the petitioners for absorption in the regular establishment as Group-D 15 staff and, therefore, on detection of the mistakes the said authorities should rectify the same upon revising its earlier decision in order to do justice to the petitioners even at a belated stage.
It is true that the scheme in question is no longer in existence. However, the petitioners are also not claiming absorption under any pending scheme. The petitioners herein are only seeking rectification of the mistakes committed earlier by the concerned authority in the year 2001 by not properly considering its own records relating to the engagement of the petitioners as Tahasil Mohurriors. The mistakes can be rectified at any stage.
Furthermore, the petitioners have acquired the right for absorption in the regular establishment pursuant to the scheme before pronouncement of the judgment in the case of Secretary, State of Karnataka & Ors. Vs. Uma Devi (3) & Ors (supra). In the aforesaid circumstances, principles decided by the Supreme Court in the case of Secretary, State of Karnataka & Ors. Vs. Uma Devi (3) & Ors (supra) have no manner of application in the facts of present case.
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In any event, the respondent authorities cannot discriminate the petitioners in the matter of employment. Admittedly, several other Tahasil Mohurriors, who were at par with the petitioners herein, were absorbed in the regular establishment as Group-D staff whereas the petitioners herein were illegally denied such absorptions.
There cannot be any valid reason to deny regularisation of the petitioners in regular establishment inspite of fulfillment of the requisite criteria under the scheme when the respondent authorities had already regularised several other Tahasil Mohurriors in the regular establishment under the said scheme. The discriminatory treatment cannot be approved by any court of law.
The respondent authorities herein had unfortunately acted in an arbitrary, discriminatory and illegal manner while rejecting the claims of the petitioners herein.
We have already discussed hereinbefore that the respondent authorities had committed serious mistakes by not examining the relevant records relating to the engagements of the petitioners as Tahasil Mohurriors while deciding their claims for regularisation under the scheme. Therefore, on detection of the said mistakes, this court can certainly issue appropriate directions to the 17 concerned authorities to rectify its earlier mistakes in order to do substantial justice to the petitioners.
As we have already observed that the concerned authorities namely the Block Land and Land Reforms Officer, Sabang and the District Land and Land Reforms Officer, Medinipur have specifically mentioned in their reports that the petitioners herein had worked as Tahasil Mohurriors continuously for a period of five years or more and thus, fulfilled the eligibility criteria for absorption in the regular establishment as Group-D staff pursuant to the circulars issued by the Land and Land Reforms Department, Government of West Bengal on 15th October, 1998 and 13th November, 1999, we have no hesitation to direct the respondent authorities to absorb the petitioners in the regular establishment as Group-D staff in the same manner as had been done in the identical cases on the earlier occasions.
Therefore, we direct the respondent authorities herein to absorb the petitioners in the regular establishment as Group-D staff in terms of the circulars issued by the Land and Land Reforms Department, Government of West Bengal on 15th October, 1998 and 30th November, 1999 like other identically placed eligible Tahasil Mohurriors who have been absorbed earlier. The petitioners 18 shall be absorbed at an early date but positively within a period of six weeks from date.
This writ petition thus stands allowed. In the facts of the present case, there will be no order as to costs. Let urgent Xerox certified copy of this judgment and order, if applied for, be given to the learned Advocates of the parties on usual undertaking.
[PRANAB KUMAR CHATTOPADHYAY, J.] MD. ABDUL GHANI, J.
I agree.
[MD. ABDUL GHANI, J.]