Tota Mian v. State of West Bengal — 1993 DIGILAW 62 (CAL)

Judgment Sunil Kumar Guin, J. The appeal being FMAT No. 866 of 1090 is directed against the judgment and order passed by the learned trial Judge on 6.3.90 in Civil Rule No. 62(W) of 1980 whereby he dismissed the writ petition. 2. The questions that arise for decision in this appeal have also arisen in C.O. No. 4737 (W) of 1989 and C.O. No. 5075(W) of 1989. So the writ petitions in these two cases have been referred to this court for being heard along with the appeal. Accordingly these two writ petitions have also been heard along with the appeal. 3. The writ petitioners, who are the appellants here and also the other writ petitioners prayed for a writ of mandamus directing' the respondents to absorb them in the regular establishment as per G.O. No. 1700-EMP/3G-26/78 dated 3.8.79 (hereinafter referred to as the said G.O.). 4. The case of the appellants-petitioners was that for upkeep of the forest and to prevent damage to the trees they were appointed orally as contract labourers within the period of 1978 to 1984 and used to get Rs.200/- per month which was subsequently increased to Rs.360/- per month and that they used to draw the amount by voucher in West Bengal Form No. 2597 a specimen copy of which was marked as Annexure-A to the writ petition. Their further case was that they had to discharge the duties in maintaining a nursery in plantation of trees, growing the same by watering, cutting earth and protecting tender trees so that they might not be destroyed by the villagers and others and that as they had been working as contract labourers in the respective department for more than 240 days a year and had been working for more than 5 years they were entitled to be absorbed in the regular establishment in terms of the said G.O. Their further case was that they made prayer oral and written for their absorption in regular establishment but without any effect. So they moved this court in writ jurisdiction for the relief as mentioned above. 5. So they moved this court in writ jurisdiction for the relief as mentioned above. 5. The respondents No. 1, 3 and 4 opposed the writ petition contending that as the writ petitioners were engaged after 3.8.79, they were not entitled to be absorbed in terms of the said G.O., that as the writ petitioners were contract labourers and were not doing any perennial type of work, they are not entitled to be absorbed in terms of the said G.O. that as the writ petitioners were engaged under Social Forestry Project which was a temporary and time bound project financed by the World Bank and as the said project already came to an end, the writ petitioners did not have any right to be absorbed in the regular establishment of the Forest Department in terms of the said G.O. and that the said G.O. was not applicable to the .persons engaged in a temporary and time bound project like the Social\Forestry Project. 6. The learned trial Judge by his order dated 6.3.90 held that works performed by the writ petitioners were not of perennial in nature and that as such they were not entitled to be absorbed in terms of the said G.O. He further held that the petitioners were not the casual labourers within the meaning of the said G.O. but were contract labourers and that as such the said G.O. was not applicable to them. With these findings he dismissed the writ petition. 7. Being aggrieved the writ petitioners have preferred the instant appeal challenging the judgment and order as passed by the learned trial Judge. With these findings he dismissed the writ petition. 7. Being aggrieved the writ petitioners have preferred the instant appeal challenging the judgment and order as passed by the learned trial Judge. It has been submitted by the learned advocate for the appellants that the appellants-petitioners are not contract labourers as has been found by the learned trial judge but are daily rated casual workers doing perennial type of work within meaning of said G.O. and that as they have been working for more than 5 years they are entitled to be absorbed in the permanent establishment in terms of the said G.O. In support of his submission he has referred to and relied upon the decisions of the Supreme Court in the •case of Daily Rated Casual labourer employed under P. & T. Department through Bhartiya Dak Tar Mazdoor Manch vs. Union of India reported in AIR 1987 Supreme Court 2342 and in the case of U.P. Income Tax Department Contingent Paid Staff Welfare Association vs. Union of India reported in AIR 1988 Supreme Court 517. It has further been submitted on behalf of the appellants that though the Social Forestry Project financed by the world Bank was temporary in nature, still the appellants-petitioners never worked under the said project which is completely separate from the office of the Divisional Forest Officer and that they have been working under the Forest Department of the Government of West Bengal and never worked under the said project. It has further been contended that as the appellants-petitioners are working under the Forest Department for more than 5 years, they are entitled to be absorbed in the said Department in terms of the said G.O. 8. So far as the other writ petitioners are concerned their case is that as they have been working in the Social Forestry under Durgapur Social Forestry Division for more than 3 years, they are entitled to be absorbed in the permanent establishment of the Forest Department. 9. So far as the other writ petitioners are concerned their case is that as they have been working in the Social Forestry under Durgapur Social Forestry Division for more than 3 years, they are entitled to be absorbed in the permanent establishment of the Forest Department. 9. The learned Advocate for the respondents have argued that there was a project known as Social Forestry Project in West Bengal, that the said project was temporary and time bound project financed by World Bank, that the said project was scheduled to come to an end on 31.12.87 but was subsequently extended upto 31.3.91, that as there was no further extension, the said temporary project came to an end on 31.3.91 and that the person engaged in such project of temporary nature cannot have any, right to get themselves absorbed in the permanent establishment of the Government. In support of his argument he has referred to the decisions of the Supreme Court in the case of Sandeep Kumar and others vs. State of Uttar Pradesh reported in AIR 1992 Supreme Court 713 and in the case of Delhi Development Horticulture Employees' Union vs. Delhi Administration reported in AIR 1992 Supreme Court 789. He has further argued that as the writ petitioners were contract labourers and not casual labourers and as they were not doing any perennial type of work, the said G.O. is not applicable to them and that they cannot claim absorption in permanent establishment in terms of the said G.O. 10. It is not disputed and is also clear from the annexures to the supplementary affidavit affirmed on behalf of the respondents No. 1, 3 and 4 on 27.8.92 that in West Bengal there was a project known as Social Forestry Project and that it was time-bound temporary project financed by the World Bank. It appears that the purpose of the project was to grow plantation on non-forest land such as strips of land by the side of the road, canal, railway etc. and at the same time to give some employment to the rural poor. From Annexure X-5 of the said supplementary affidavit, it is clear that the said project came to an end on 31.3.91 up to which date the World Bank extended the project. and at the same time to give some employment to the rural poor. From Annexure X-5 of the said supplementary affidavit, it is clear that the said project came to an end on 31.3.91 up to which date the World Bank extended the project. Thus it is clear that the said project was temporary and time-bound project and it has already come to an end so far as the writ petitioners in C.O. No. 4737(W) of 1989 and C.O. No. 5075(W) of 1989 am concerned, they admittedly worked under the said Social Forestry Project. But so far as the appellants in FMAT No. 866 of 1990 are concerned, their case is that they never worked under Social Forestry Project which vas completely separate from the Divisional Forest Office, that they have been working under the Forest Department of the Government of West Bengal and that as such the temporary nature of the Social Forestry Project is not going to affect them in any way. So the question arises whether the appellants-petitioners worked under Social Forestry Project or whether they worked under Forest Department of Government of West Bengal. This is essentially a question of fact. To get any relief on the writ petition they shall have to establish that they have been working under Forest Department and not under the Social Forestry Project. The State respondents have produced the xerox copies of the cash books (Annexure X-10) showing how payments were made to some of the appellants-petitioners. This annexure goes to show that they were paid under Social Forestry Project. This undoubtedly supports the case of the respondents. However, the respondents have also produced some xerox copies of vouchers (Annexure X-11) by which some of the appellants-petitioners received payment on voucher in the Form of the Forest Department, Malda and West Dinajpur Division. There is no mention of Social Forestry Project in such voucher. It certainly raises a doubt in mind whether the appellants-petitioners were employed under Social Forestry Project or under Forest Department. But this doubt is removed by their own statement in paragraph 5 of the writ petition wherein they have stated that the amount was drawn by voucher in West Bengal Form No. 2597 a specimen copy of which was marked as Annexure A to the writ petition. Annexure A undoubtedly indicates and shows that the appellants-petitioners were employed under Social Forestry Division. Annexure A undoubtedly indicates and shows that the appellants-petitioners were employed under Social Forestry Division. So on consideration of this Annexure A and the Annexure X-10 to the supplementary affidavit of the respondent, this court holds that the appellants-petitioners as a matter of fact, were employed under Social Forestry Project. Thus it is clear to us that the appellants-petitioners and the other writ petitioners were employed under the aforesaid Social Forestry Project. We have already stated that the said project financed by the World Bank was of temporary nature and was a time bound project which has already come to an end on 31.3.91. But this much is clear that the appellants-petitioners and the other writ petitioners have worked for more than 3 years under the said temporary project. Now the question arises whether by virtue of their continuous employment under the said project, the appellants-petitioners and other writ petitioners have acquired a right to get themselves absorbed in permanent establishment of Department of the Government. In support of the contention that the appellants-petitioners and the other petitioners have acquired such right, a reference has been made to the decisions of the Supreme Court in the cases reported in AIR 1987 Supreme Court 2342 and AIR 1988 Supreme Court 517. The first case relates to employment of casual labourers under the Post and Telegraph Department and the second case relates to the workmen employed as contingent paid staff of Income-Tax Department. In both the cases the Supreme Court directed the respondents to prepare a scheme on a rational basis for absorbing as far as possible the aforesaid casual labourers and contingent staff who have been continuously working for more than one year in the said department. But the facts of the reported case are different from the facts of the case at hand. In the reported cases the casual labpurers or the contingent paid staff were employed as such in the respective Departments. Sp the Department concerned was directed to frame a scheme for their absorption on a rational basis. But in the instant case the appellants-petitioners and the other writ petitioners were not employed in any Department of the Government but were employed in a separate Social Forestry Project which was temporary in nature having only time bound programmes. Sp the Department concerned was directed to frame a scheme for their absorption on a rational basis. But in the instant case the appellants-petitioners and the other writ petitioners were not employed in any Department of the Government but were employed in a separate Social Forestry Project which was temporary in nature having only time bound programmes. Since the project itself has come to an end, the question of their permanent absorption in the said project cannot and does not arise. In the facts and circumstances of the case, the Department of the Government cannot be asked to absorb them on permanent basis. By virtue of their employment under the said project, the appellants-petitioners and the other writ petitioners cannot be said to have acquired any right to get themselves absorbed in any Department of the Government. In this connection our attention has been drawn to the decisions of the Supreme Court cases reported in AIR 1992 Supreme Court 713 and AIR 1992 Supreme Court 789. The first case relates to junior Engineers in the Project placed under the control of Executive Officer, City Board. Ghaziabad. The nature of the work was essentially slum clearance and the project was financed partly by the State of Uttar Pradesh and partly by World Bank funds. In the facts and circumstances of the case, the Supreme Court has held that since the petitioners were working under a scheme which was very specific in nature, there was no permanent need for the work and that since it was a project for a particular purpose, it will not be possible to direct that the petitioners may be regularised in service. The second case relates to employment of the petitioner under: the jawahar Rojgar Yojana under which the scheme were evolved to provide income for those who were below the poverty line and particularly during the period when they were without any source of livelihood and therefore without income whatsoever. The Supreme Court has held THAT IF THE RESOURCES USED FOR THE SAID PROJECT WERE IN THEIR entirety to be used for providing full employment throughout the year, they would have given employment only to a small percentage of the population in need of income, the remaining vast majority being left with no income whatsoever. The Supreme Court has held THAT IF THE RESOURCES USED FOR THE SAID PROJECT WERE IN THEIR entirety to be used for providing full employment throughout the year, they would have given employment only to a small percentage of the population in need of income, the remaining vast majority being left with no income whatsoever. It has been further held that those employed under the scheme therefore could not ask for more than what the scheme intended to give them and that to get an employment under such scheme and to claim on the basis of the said employment a right to regularisation is to frustrate the scheme itself and that no court can be a party to such exercise. In our opinion the aforesaid decisions of the Supreme Court are applicable to the present case. The Social Forestry Project was a temporary time-bound project financed by the World Bank. The purpose of the project was to increase plantation on non-forest land such as strips of land by the roads, canals, railways etc. and at the same time to give some employment to the rural poor. Since the said project has already come to an end, the persons employed therein in view of the aforesaid decisions cannot claim their absorption 'in permanent establishment of the Government. So in the facts and circumstances of the case and in view of the aforesaid decisions of the Supreme Court as referred to and relied upon by the respondents, we are of the opinion that the appellants-petitioners and other writ petitioners have no right to get themselves absorbed permanently in any Department of the Government. 11. Moreover as per the said G.O., the persons employed under the Department of the Government can claim for their absorption in terms of the said G.O. in the permanent establishment of the Government. Since the appellants-petitioners and the other writ petitioners were not employed in any Department of the Government, they cannot claim any right for their absorption in any permanent establishment of the Government by virtue of the said G.O. The said G.O. is applicable only to the workers who are employed in perennial type of work. Since the appellants-petitioners and the other writ petitioners were not employed in any Department of the Government, they cannot claim any right for their absorption in any permanent establishment of the Government by virtue of the said G.O. The said G.O. is applicable only to the workers who are employed in perennial type of work. Since the appellants-petitioners and other writ petitioners were working under a temporary time-bound project which has already come to an end, they cannot be said to have been doing a perennial type of work as contemplated in the said G.O. Thus in any view of the matter, we are of the opinion that the appellants-petitioners and the other writ petitioners have got no right to get themselves absorbed in permanent establishment of the Government as they have claimed. So we see no reason to interfere with the order appealed against. 12. In the result, appeal is dismissed. The writ petitions in C.O. No. 4737(W) of 1989 and in C.O. No. 5075(W) of 1989 are also dismissed. All interim orders are vacated. We pass no order as to cost. However, the petitioners have worked under the said project for more than three years. It is expected that the Government would frame a suitable scheme for their absorption in the permanent establishment after condoning the age bar if they are found otherwise suitable for the job on the date of such absorption. Learned Counsel for the appellants prayed for stay of operation of the order. The prayer is declined. A.M. Bhattacharjee, C.J.: I agree. Appeal and the writ applications dismissed.