Calcutta High Court (Appellete Side)
(Bibek Ranjan Pahari vs State Of West Bengal & Ors.) on 23 April, 2019
Author: Protik Prakash Banerjee
Bench: Protik Prakash Banerjee
1
23.04.2019
04
RP Ct.10
WP 10778 (W) of 2016
(Bibek Ranjan Pahari vs. State of West Bengal & Ors.)
Mr. Uday Sankar Chattopadhyay, Adv.
Ms. Snigdha Saha, Adv.
Ms. Priyanka Saha, Adv.
.... For the Petitioner
Mr. Hare Krishna Halder, Adv.
.... For the State
The writ petitioner has instituted this writ petition seeking the
following reliefs.
a) Issue a writ of or in the nature of mandamus commanding the
respondents specially the respondent no.3 to withdraw, set aside,
cancel, revoke and/or quash the impugned letter dated 01.06.2016 issued by the Pradhan, Dhaspara Sumatinagar-II Gram Panchayat, Sagar, South 24 Parganas, thereby illegally, arbitrary and whimsically terminated the petitioner from the post of casual worker.
b) Issue a writ of or in the nature of mandamus commanding the respondents specially the respondent no.3 to reinstate the petitioner 2 to the post of casual worker 'Sahayak' in Dhaspara Sumatinagar-II Gram Panchayat, Sagar, South 24 Parganas.
c) Issue a writ in the nature of mandamus directing the respondents to give effect to the Notification dated 25.02.2016 issued by the Principal Secretary, Audit Branch, Finance Department, Government of West Bengal, being No.1107-F(P) being Annexure P-8 herein.
d) Issue a Writ in the nature of Prohibition commanding the respondents specially the respondent no.3 to prohibit him from appointing any other person in the post of casual worker 'Sahayak'. The writ petitioner has stated in the writ petition, inter alia, at paragraphs 3 and 4 as follows:-
"3. Your petitioner states that the petitioner had been working on the oral request of the Pradhan of the said Gram Panchayat as a clerk/helper since 2009. At that time, the Prodhan used to pay the petitioner in cash.
4. Your petitioner states that the petitioner had been officially appointed on casual basis in December , 2010 by the Dhaspara 3 Sumatinagar-II Gram Panchayat, Sagar, South 24 Parganas (hereinafter referred to as the said Gram Panchayat) as 'Sahayak'. The petitioner joined his official duty from 03.01.2011."
He has relied upon the Government Order as Annexure P-8 at page 83 where sub-paragraphs (i) and (ii) of paragraph 3 provides as follows:-
(i) All contractual/casual/ daily rated workers shall continue to be in engagement up to the age of 60 years. Engagement of contractual/ casual/ daily rated worker shall not be terminated except as prescribed in the above referred Memo.
(ii) Consolidated monthly remuneration of casual worker.
There are other benefits given under this Government Order. The writ petitioner submits that having been officially appointed even if as a contractual/casual/daily rated worker he is entitled to the benefit of the above memo dated February 25, 2016 which was applicable to any such contractual/casual/daily rated worker in terms of the Memo No.9008- F(P) dated September 16, 2011.
To contest this claim of the writ petitioner the respondent State has taken two-fold defense. Firstly, it says that the writ petitioner has 4 admitted that he was appointed on the basis of an oral arrangement contrary to any of the recruitment procedures having statutory force. He points out that under Sections 35 and 35A of the West Bengal Panchayat Act, 1973 such appointment could not have been made to any 'Karmi' or 'Sahayak' of a Gram Panchayat and furthermore even contractual appointment only for the purpose of appointment on implementation of schemes under the National Rural Employment Guarantee Act, 2005 can only be done in such manner and on such terms and conditions as specified in those schemes. None of them allowed this sort of appointment, which was purportedly made by Panchayat and/or its Pradhan on oral arrangement or by the resolution at Annexure P-1 to the writ petition.
Secondly, he submits that where a person has been appointed contractually but purely on an ad hoc basis without following the procedure of recruitment laid down by statutory rules then howsoever long he serves he has no right of extension of his service or regularization in service. He has relied on the judgment in the case of Yogesh Mahajan vs. Prof. R.C. Deka, Director, All India Institute of Medical Sciences reported in 2018 (2) WBLR (SC) 513. The said decision was rendered on the basis of a judgment in the case of Secretary, State of Karnataka vs. Uma Devi (3), (2006) 4 SCC 1. The Hon'ble Supreme Court has held in the said judgment that the petitioner in that case had no right to an 5 extension of his service and further he had no right to be regularized since his appointment was made on contractual basis or on an ad hoc basis without following any laid down procedure and without following any reasons. That case was decided on a clear finding that the petitioner was unable to show any statutory or other right to have his contract extended beyond June 30, 2010 when the contract of employment expired.
There is an important difference between the judgment cited by the learned Advocate appearing for the State of West Bengal and the present case. Annexure P-8 to the writ petition is a welfare measure in the nature of an executive order whereby only the engagement of all contractual/casual/daily rated workers was continued till the age of 60 years with a protection from termination from service in terms of the memo dated September 16, 2011 and this was an executive order by which the period of engagement was specified to be the age of 60 years which the respective employee would attain on a certain date. Therefore, this too was a specific period within the meaning of Annexure P-8 to the writ petition and the statute. Hence, considering the welfare nature of the measure adopted by the State of West Bengal it cannot be said that the engagement and its continuance was de horse the statute and/or statutory rules of recruitment to a permanent post. The writ petitioner and those similarly situated were not made permanent and nor are they 6 claiming to be so. They are not being regularized in the regular establishment of the Panchayat. Only their engagement is sought to be continued till a specified period being when they attain the age of 60 years. In such view of the matter, neither Section 35 or 35A of the West Bengal Panchayat Act debars this particular step being taken by the State of West Bengal nor do they disentitle the petitioner form claiming the benefit of Annexure P-8.
The judgment cited by the learned Advocate for the State of West Bengal is clearly capable of being distinguished on facts and the existence of the said executive order which is the force of law. A little difference, in fact, makes a lot of difference in the value of the judgment as a precedent. Accordingly, I hold that the writ petitioner has been able to make out a case of being given the benefit of the memorandum as an Annexure P-8. Accordingly, the memo dated June 1, 2016 at Annexure P-9 issued by the Pradhan of the Gram Panchayat, being the respondent no.5, is clearly contrary to the memo has in Annexure P-8 since it seeks to terminate the engagement of the writ petitioner before the age of 60 years and otherwise than as prescribed in the memo dated September 16, 2011. Thus, the memo as Annexure P-9 is quashed and set aside. The engagement of the writ petitioner shall continue till he attains the age of 60 years strictly in terms of the memo as in Annexure P-8 and the period between June 1, 2016 and the entire period of pendency of the 7 writ petition shall be deemed to be when he was still discharging his duties and any arrears in terms of Annexure P-8 shall be paid to the petitioner within a period of two months from the date of communication of this order. The writ petitioner shall be entitled to join his duties according to the engagement immediately but no later than a period of fortnight from the date that the petitioner communicate this order to each of the respondents. In case the petitioner does not resume his duties within the above period it shall be deemed that he is not interested in the engagement. The writ petition is allowed to the above extent.
The writ petition is disposed of.
There shall be no order as to costs.
Urgent Photostat certified copy of this order, if applied for, be delivered to the learned Advocates for the parties, upon compliance of all formalities.
(PROTIK PRAKASH BANERJEE, J.) 8