P. K. MUKHERJEE, J. ( 1 ) THE petitioners, who are 112 in number, are all appointed as "contract labourers" for up-keeping of the forests and for prevention of damages of the trees under the Range Officers of different districts, being respondents Nos. 5 to 7 in the instant writ petition. ( 2 ) AT the time of the admission of the writ petition on January 21, 1988, Ajit Kumar Sengupta, J. having issued the Rule directed the parties to maintain 'status quo' regarding petitioners' service until further orders and by virtue of the said order of 'status quo' the petitioners still performing their duties as "contract labourers" till this date. ( 3 ) MR. . Arun Prakash Chatterjee, learned Senior Advocate appearing on behalf of the writ petitioners at the final hearing of the writ petition, has submitted the following facts for consideration of this Court. ( 4 ) IN 1948, the West Bengal Private Forest Act was enacted to provide for conservation of forest and for afforestation in certain areas in West Bengal. The Director of Forest accordingly created different ranges, particularly Balurghat Range, Bhaluka Range and Jhaljhalia Range and placed the same under the respective Range Officers. ( 5 ) FOR up-keeping of the forest and to prevent damages of the trees of the Range, each of the writ petitioners was appointed "orally" as "contract labourer" within the period of 19? 8 to 1984 and they used to get Rs. 200/per month each initially which was increased to Rs. 360/- per month and the said amount was drawn by voucher in West Bengal Form No. 2597 signed by each of the petitioners. ( 6 ) A specimen copy of the appointment letter issued towards the petitioners has been annexed as Annexures 'b' and 'b/1' to the writ petition wherefrom it appears that the petitioner No. 1 Tota Mia was working under Balurghat Forest Range on "contract basis" and alia as "contract majdoor'" which would be evident from the certificate given by the Forest Range Officer dated June 25, 1983 and February 10, 1986 respectively. ( 7 ) MR. . ( 7 ) MR. . Chatterjee further has drawn the attention of this Court to the memorandum dated, August 3, 1979 which has been annexed as "annexure C" to the writ petition laying down the principles to be followed in the matter of absorption of casual and other categories of workers under the State Government. ( 8 ) IT appears from the said memorandum that Government having considered the question of discontinuation of the employment of "casual" and "such other categories" of workers in "perennial type of work" and the question of gradual absorption of all such categories of workers employed from time to time by the Employing Authorities under the Government and after consideration of the matter decided as under: -"further recruitment of casual and such other categories of workers shall not be normally made. Initial recruitment of such workers, if considered unavoidable by any Employing Authority, shall henceforth be invariably made through the Employment Exchange, as already decided in the case of filling up of vacancies of non-P. S. C. , non-promotional posts. "ad hoc appointment" of persons from the outside shall be made for a period not exceeding 15 days to meet any situation of emergent nature. Such "ad hoc appointees" will have no claim in future for absorption in the regular establishment under the State Government. " ( 9 ) THE Government further decided that -"casual and other categories of workers who have been engaged in a "perennial type of work" for a continuous period of more than three years may be absorbed in the regular establishment on temporary basis in existing vacancies. If suitable vacancies are not available necessary steps may be taken by the respective authorities to create the requisite number of posts for the purpose of absorption of such categories of workers in consultation with the Finance Department; notwithstanding anything contained in the recruitment policy circulars issued by the State Government from time to time, 5 % of vacancies against the quota of 70 % earmarked for recruitment through Employment Exchanges shall be kept reserved for absorption of 'those casual' and such other categories of workers, who are 'already engaged in perennial type of work' and have rendered at least 240 days service in a year but have not completed three years' service as yet. While filling up the vacancies in the regular establishment, duly qualified seasonal workers who have worked for five years or more in consecutive seasons share be considered for appointment by the respective Employing Authorities along with the candidates sponsored by the Employment Exchanges. The system of engaging "contract labour" for a "perennial type of work" by certain State Government Establishments/undertakings, etc. shall be abolished in phases. For the purpose of gradual absorption of 'contract labour' in the regular establishment of the principal employer necessary steps may be taken by the concerned employing authority. Henceforth, at the time of appointment of contractors one of the terms and conditions shall be that initial recruitment to all categories of staff by the contractors shall invariably be through the Employment Exchanges. In respect of subsisting contractors, contractors may be persuaded to fill up the vacancies under them by candidates sponsored through employment exchanges -the above measures were directed to be enforced with immediate deflect. ( 10 ) "casual" and "such other categories of workers" have been defined as casual workers, daily rated workers, muster roll workers and such other categories of persons as may be specified from time to time by Government. ( 11 ) AFTER placing the aforesaid circular from Annexure C to the writ petition, Mr. . Chatterjee submits that as the writ petitioners have been performing the services of "contract labour" they should be absorbed in accordance with the said memorandum dated August 3, 1979. ( 12 ) IN support of his contention, Mr. Chatterjee has placed reliance an a judgment of this Court in the case of Bimal Kumar Pal and Ors, vs. State of West Bengal and Ors, reported in 198s (1) CHN 35 wherein Ajit Kumar Sengupta,. J, in dealing with the termination of temporary service of a daily rated worker serving continuously for over 280 days, held that although the appointment of the petitioners was purely temporary, termination made by the State Government without giving an opportunity of being heard was bad. ( 13 ) HE has also placed reliance on another single Bench judgment of this Court in the case of Abhijit Aich Roy vs. West Bengal State Electricity Board, reported in 1987 (1) CHN 152 . ( 13 ) HE has also placed reliance on another single Bench judgment of this Court in the case of Abhijit Aich Roy vs. West Bengal State Electricity Board, reported in 1987 (1) CHN 152 . In the said case the self-same learned Judge dealing with the order of termination by invoking regulation 33 (2) and regulation 34 of the West Bengal State Electricity Board Employees' Service Regulations, held that the petitioner who has served from the year 1973 to 1983 for about 10 years must be deemed to be in permanent employment although his absorption was made on October 7 1982. It has been further held in the said case that even if the petitioner be treated as temporary employee after about 10 years his service could not be terminated by invoking regulation 33 (2) of the said Regulations. ( 14 ) MR. . Arun Prakash Chatterjee has also relied on an unreported judgment delivered by me on December 18, 1989 in C. O. No. 10814 (W) of 1988 (Subhas Sen. 4 Ors. vs. State of West Bengal and Ors.) wherein this Court had disposed of the writ petition by directing the respondent authorities to absorb the petitioners as group D employee under the State of West Bengal in terms of the circular dated August 3, 1979 and August 28,, 1980, which are Annexures "b" and "c" respectively to the said writ petition and further directing the respondents to release the scale of group-D employees to the writ petitioners from the date of initial appointment till the absorption in terms of the judgment of the Supreme Court in the case of U. P. Income-lax Department Conlingent Paid Staff Welfare Assaciation vs. Union of India and Ors. , reported in AIR 1988 S. C. 517 and also the judgment reported in AIR 1987 S. C. 2342 (Daily Rated Casual Labour Employed under P. and T. Department through Baratiyi Dak Tir Mazdoor stench vs. Union of India and Ors. ). ( 15 ) MR. . Dipak Prakash Kundu, learned Senior Advocate appearing with his learned Junior Mr. . , reported in AIR 1988 S. C. 517 and also the judgment reported in AIR 1987 S. C. 2342 (Daily Rated Casual Labour Employed under P. and T. Department through Baratiyi Dak Tir Mazdoor stench vs. Union of India and Ors. ). ( 15 ) MR. . Dipak Prakash Kundu, learned Senior Advocate appearing with his learned Junior Mr. . Majibar Rahman on behalf of the respondents, has placed reliance on two sets of affidavit, first of which had been alarmed on August 18, 1988 by one Subir Chandra Chakraborty, Range Officer on behalf of the Divisional Forest Offcer, Malda and West Dinajpur Division (hereinafter referred to as the first affidavit) and the second affidavit alarmed on September 1, 1989 by one Pranabes Sanyal, being the Assistant Chief Conservator of Forest, West Bengal (hereinafter referred to as the second affidavit) ( 16 ) IN the first affidavit the deponent having disputed the averments made in the writ petitioner, inter alia, stated that some casual mazdoors were engaged for various forestry works in Malda, West Dinajpur Division and those who were engaged prior to August 3, 1979 have been either absorbed in regular establishment or working as daily labour on muster roll. It has been further stated that there are 17 such muster roll workers in Malda, West Dinajpur Division and for implementation of sacral forestry schemes and protection of assets created, the Range Officers concerned engaged some people on "contract basis" and some works were of perennial type. ( 17 ) THE deponent further stated that as it was not possible to get such labourers through Employment Exchanges, the petitioners were engaged by the Range Officers concerned from the date mentioned against. each of them as "contract mazdoor" which has been referred to in Annexures. 'b' and 8/1' to the writ petition. ( 18 ) THE deponent made a further statement in paragraph 6 of the first affidavit to the effect that prior to 1980 there was no contract mazdoor end contract mazdoors were engaged with extension of forest activities, specially works undertaken under social Forestry,- R. L. E. G. P. , etc. from July 1985 the contract mazdoors are being paid @ Rs. 360/ -. per month but before that they were paid @ Rs. from July 1985 the contract mazdoors are being paid @ Rs. 360/ -. per month but before that they were paid @ Rs. 260/- per month; The mazdoors were engaged against particular scheme and their services are not required as soon as the work of the scheme m over. ( 19 ) THE second affidavit, which was affirmed by the Assistant Chief Conservator of Forest, has described the scheme in details and in the said affidavit at was stated as follows :- (A) Each Range which is being controlled by a Range Officer is administratively divided normally into 2-5 beats under the control of a Deputy Ranger/forester or the Beat Officer. Malda West Dinajpur Division has four ranges and 13 beats. Forest Guards are posted for the purposes of protection works and the number of Division Forest Officer, Head Clerk, Upper Division Clerk, etc. has been stated in paragraph 4 of the said affidavit. (B) After launching of IDA (International Development Agency) Social Forestry Project (SFP) in 1981 in the State of West Bengal with the financial assistance of the World Bank, various schemes for raising plantations both strip and break outside the "conventional" forest areas were taken up by this Division as per the budgetary allotments. Such plantation works were taken up on a large scale on lands belonging to P. W. D. /i and W Department/panchayat Bodies/railways (along with roadsides), National Highway, State Highway, village and Panchayat Roads, canal sides, embankments and railway sides under various models of social Forestery Project. Plantation works, both within and outside the "conventional" forest areas, were also taken up under other schemes called Rural Landless Employment Guarantee Programme (NREP), Integrated Tribal Development Programme (ITDP), Special Component Plan (SCP) and VI Economic Plantation (VI ESCO-State Plan ). (C) At present with the gradual coverage of all available and workable plantation sites, the plantation work has lowered down to a large extent and it would be evident from the following table showing the yearwise statement of five years' plantation, which is being set out hereunder. (D) The fund on the other hand is the biggest limiting factor in the absence of which nothing can be done. The period for providing financial assistance by the World Bank to the State has not ripened and is going to be over by the end of 1989 and this can be seen from Annexure 'x/1' of the affidavit. (D) The fund on the other hand is the biggest limiting factor in the absence of which nothing can be done. The period for providing financial assistance by the World Bank to the State has not ripened and is going to be over by the end of 1989 and this can be seen from Annexure 'x/1' of the affidavit. The flow of fund under RLEGP scheme from Government of India has stopped from financial year 1987-88. The raising for social forestry under the scheme of Jawahar Rojgar Yojna is now placed with the Zilla Parishads and is mainly being utilised for the work through the Panchayat Bodies. (E) For each phase of the time bound plantation work a fixed allotment (hectare-wise rate for regeneration work is fixed by the Forest Directorate every year) is give to each division against the physical target axed for the particular division. ( 20 ) MR. . Kundu further has placed reliance on the statements made in paragraph 14 of the said second affidavit wherein the deponent, stated that apart from the regular job the petitioners do not perform any other plantation work like digging, filling up plantation pits, planting of seedlings, cleaning, mulching, etc. for which other casual labourers are engaged during the plantation time and for which the petitioners have been engaged. For creation of nurseries also casual daily labourers were engaged. This fact specifically shows that their engagement is only for a short term maintenance and as soon as the time bound and fund based period is over, the necessity of their further engagement withers away. According to the deponent, it is due to the, scarcity of the Government Fund and with the lowering down of plantation works, further engagement of the laborers and payment of wages had been made impossible. The wage rate has become so high that now the provision throughout the year within the first allotted amount is very hard as the wage rate has been raised to Rs. 21. 70 from Rs. 12/ -. The wage rate has become so high that now the provision throughout the year within the first allotted amount is very hard as the wage rate has been raised to Rs. 21. 70 from Rs. 12/ -. ( 21 ) ACCORDING to the said deponent, as regards the claim for getting the benefit under Government Order No 1700-EMP/3c-26/78 dated August 3, 1979 (Annexure X/6 to the affidavit) it is very much clear that the said ,government Order was meant for "casual and such other categories of workers" who are in "perennial" type of work and as the petitioners are neither under the category of "casual and such other categories of workers" nor engaged in any "perennial" type of work, the petitioners were not entitled to the benefit of the Government Order. ( 22 ) IT has been further stated in paragraph 17 of the said affidavit that the memo dated August 3, 1979 relates to casual workers, daily rated workers, muster roll workers and such other categories of workers as may be specified from time to time by the Government and as the petitioners fall under none of these categories, the petitioners are not entitled to be absorbed accordingly. ( 23 ) FURTHER according to the said deponent, as the petitioners are not coming within the purview of existing employees of muster roll labourers who were 17 in Malda ,west Dinajpur Division and 476 in the entire. Forest Directorate and all of them were appointed prior to issuance of the memo dated August 3, 1979, the question of their absorption by the respondents did not arise. ( 24 ) A relevant fact has been stated in the said paragraph 17 of the said affidavit that at present a proposal is lying with the Government for absorption of these labourers in the regular establishment after creation of new posts as there is no permanent existing vacancy. None of the petitioners in question was engaged in 1978 and 1979 as wrongly claimed in paragraph 5 of the writ petition and the petitioners' case does not deserve consideration for permanent absorption. ( 25 ) MR. Kundu further has placed reliance on another memo. Contained in memo. None of the petitioners in question was engaged in 1978 and 1979 as wrongly claimed in paragraph 5 of the writ petition and the petitioners' case does not deserve consideration for permanent absorption. ( 25 ) MR. Kundu further has placed reliance on another memo. Contained in memo. No. 1650 EMP/3c-5/86 dated August 28, 1980 (Annexure X/7 to the affidavit) wherefrom it appears, that the Government having considered the question of retrenchment of casual and such other categories of workers already employed as such and engaged in perennial type of work had reviewed the matter and issued the following decisions :- (I) Retrenchment of casual workers already employed as. such and engaged in perennial nature of not may not normally be restored to. Continuation or otherwise 6f the casual workers already in employment is a matter for the administrative department agency to decide, keeping in view the nature and requirement of the job. (II) Casual workers who had already been in employment as on August 3, 1979 and are still continuing as such will also be eligible for absorption in the regular establishment in the same manner as laid down para 3 of said G. O. on completion of more than three years' service, as defined in the following paragraph, from the date of their initial appointment as casual workers. (III) Continuous period of more than three years' as contained in paragraph 3 of the said Govt. Order shall mean 240 days of work in each completed calendar year of service for three consecutive years. (IV) Not less than 126 days of work which may be continuous or not, in a season stretching over a period of six months will qualify a worker to have worked for one season in a calendar year. (V) 'duly qualified seasonal workers' referred to in para 5 of the said Govt. Order shall mean those seasonal workers who are still continuing as such and who possess the qualifications prescribed in the rules of recruitment for the post in which they will be considered for appointment in the regular establishment, subject to the condition that they are in employment at the material time for the date of their initial appointment as seasonal workers (VI) A particular job mal be treated as perennial if such job is of a permanent nature. Thus, according to Mr. . Thus, according to Mr. . Kundu, the retrenchment of casual workers already employed as such and engaged in perennial nature of job may not normally be restored to and continuation or otherwise of the casual workers already in employment is a matter for- the administrative department and/or agencies to decide keeping in view the nature and requirement of the job. ( 26 ) FROM clause (ii) it appears that the casual workers who had already been in employment as on August 3, 1979 and are continuing as such will be eligible for absorption in the regular establishment an the same manner as laid down in paragraph 3 of the Government Order on completion of more than three years' service as defined in the following paragraph from the date of their initial appointment as casual labourers. ( 27 ) ACCORDING to Mr. . Kundu, as the petitioners were never appointed as "casual labours" but "contract labours" the petitioners are not entitled to the benefit of the aforesaid memo. dated August 3, 1979. ( 28 ) ON the question of claim of the writ petitioners, Mr. . Kundu submits that as the writ petitioners have, not pleaded or given any evidence in support of the fact in the annexures, to the writ petition, Court should not entertain such claim of the petitioners and in this context he has placed reliance on the judgment of the Supreme Court in the case of Bharat Singh vs. State of Haryana, reported in A. I. R. 1988 S. C. 2181, and in paragraph 13 of the said judgment the Supreme Court observed as follows :-"if the facts are not pleaded or the evidence in support of such facts is not annexed to the writ petition or to the counter affidavit, as the case may be, the Court will not entertain the point. " ( 29 ) ACCORDING to Mr. Kundu, the decision cited by Mr. " ( 29 ) ACCORDING to Mr. Kundu, the decision cited by Mr. Chatterjee in the cases reported in 1985 (1) CHN 35 and 1987 (1) CHN 152 relate to propriety of the order of termination and the learned single Judge had the occasion to deliver judgment on the propriety of the order of termination as the petitioner was a daily rated employee in the first case and a temporary employee in the West Bengal State Electricity Board in the second case and, as such, the decisions cannot be applied in the facts of the present case. ( 30 ) IN this context Mr. Kundu has relied on the observation of the Supreme Court in the case of A. R. Antulay vs R. S. Nayak and Anr. reported in A. I. R. 1988 5. C. 1531 and in paragraph 64 of the said judgment the Supreme Court observed that the Court was not bound to follow a decision of its own if it was satisfied that the decision was given per incuriam or attention of the Court was not drawn. It is well settled that the elementary rule of justice is that no party should suffer by mistake of the Court. ( 31 ) IN this context Mr. Kundu has also referred to a judgment of the House of Lords in Queen v. Letham (1901 A. C. 495) to the effect that a case is a proposition and is what it actually decides and as the aforesaid two cases reported in 1985 (1) CHN 35 and 1987 (1) CHN 152 are not with facts similar and identical, those cases cannot be made applicable in the facts of the present case. ( 32 ) IN dealing with the unreported judgment delivered by me as well as the judgment delivered by Mahitosh Majumdar, J. in the case of Prafulla Kumar Ghosh and Ors. vs. The Farm Manager, Sisal Plantation Farm and Ors. , reported in 93 CWN 431, Mr. Kundu submits that in the said two cases this Court had decided as to the principle laid down by the Supreme Court in the matter of "equal pay for equal work" and, as such the said cases cannot be made applicable in the facts of the present case. ( 33 ) AT the hearing, Mr. Kundu submits that in the said two cases this Court had decided as to the principle laid down by the Supreme Court in the matter of "equal pay for equal work" and, as such the said cases cannot be made applicable in the facts of the present case. ( 33 ) AT the hearing, Mr. Kundu also has referred to another unreported judgment delivered by this Court on March 31, 1988 in C. O. No. 4853 (W) of 1987 (Nemai Chandra Mondal and Ors. vs. Forest Ranger Officer, Social Forestry Range, Howrah and Ors.) where this Court had allowed the writ petition following the judgment in the case of Tapan Kumar Jana vs. General Manager, Calcutta Telephones and Ors. , reported in 1980 (2) CLJ 488 and passed the following order that without taking recourse to 'absorption' of the, casual labourers, which is an avowed policy of the State Government, the respondents are indulging upon a dubious method by terminating the services even without taking recourse to giving minimum one month's notice from either side which is available in respect of temporary servants. ( 34 ) BUT Mr. Kundu refers to the fact that because of paucity of fund the respondents could not allow the petitioners to continue their work and in deciding the case of their absorption this Court should not lose sight of the fact of availability and sufficiency of the fund in determining the right of the writ petitioners although in the facts of the present case it would he evident that no letters of appointment have been issued in favour of the writ petitioners as "casual labour", the writ petitioners, are not entitled to absorption. ( 35 ) MR. Chatterjee on the other hand could not establish before this Court, although a seniority list has been annexed as Annexure E to the writ petition, that majority of the writ petitioners have been appointed before August 3, 1979 and, accordingly, they are not entitled to the benefit of the memo dated August 3, 1979 and also the memo dated August 28, 1980. ( 36 ) 1 have gone through the pleadings and the annexures including the certificates evidencing the letter of appointment on behalf of the writ petitioners wherefrom it appears that the petitioner no. ( 36 ) 1 have gone through the pleadings and the annexures including the certificates evidencing the letter of appointment on behalf of the writ petitioners wherefrom it appears that the petitioner no. 1, Tota Mia, has been working under the Balurghat Forest Range on "contract basis" and not as a "casual labourer" and it does not appear from the said certificate from which date the writ petitioner is performing his duties on contract basis From the second document which is a certificate given by the Forest Range Officer, Balurghat Range dated February 10, 1986 wherein the petitioner has been stated to be working as a contract mazdoor for a pretty long period without mentioning the date from which the petitioner is working as such, it will be difficult for this Court to enter into such disputed question of fact. ( 37 ) FURTHER, in view of the pleadings adduced in the second affidavit, there are ample evidence before, this Court that the works performed by the, writ petitioners are perennial in nature and as such, the petitioners are not entitled to be absorbed in terms of the aforesaid memo. ( 38 ) BUT this will not, however, stand in the way of the writ petitioners in the matter of future absorption in view of the statements made in paragraph 17 of the second affidavit wherein the deponent has stated that at present a proposal is lying with the Government for absorption of these labourers in the regular establishment after creation of new posts as there is no permanent existing vacancy. ( 39 ) IN the result, the writ petition is liable to fail and it is dismissed. The Rule is discharged. All interim orders are vacated. There will be no order for costs. On the prayer of the learned Advocate for the petitioners for stay of operation of this order, which is being objected to by Mr. Kundu, the said prayer is considered and operation of the judgment is stayed for one month from this date. Petition dismissed.