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1995 DIGILAW 82 (CAL)

Ashok Kumar Chatterjee v. State of West Bengal

1995-03-15

SATYABRATA SINHA

body1995
JUDGMENT Heard the petitioner in person and the learned counsel appearing on behalf of the State. 2. The petitioner in this application has, inter alia, prayed for issuance of a Writ of or in the nature of Mandamus directing the respondents to absorb him in Group 'D' services. 3. The fact of the matter lies in a very narrow compass. 4. The petitioner was appointed as a Job Worker-cum-Supervisor under Social Forestry Scheme in R.L.E.G.P. Programme at a wage of Rs. 15/- per day on no work no pay basis. The petitioner has appended many certificates to show that his job has been found to be satisfactory. By an order dated 25.8.94, the Block Development Officer, Domjur, directed the petitioner to carryon the duties of Night Guard-cum-Durwan in his office. The said assignment was also on daily wage basis. The service of the petitioner could be terminated at any time without showing any reason. The Block Development Officer by a letter dated 30th January, 1995 recommended the petitioner's case before the District Magistrate stating that the appointment of the petitioner was not irregular. However, in terms of a direction of the District Magistrate, Howrah, the petitioner's service was terminated by the Block Development Officer, Domjur, by a letter dated 10.2.95. On the same date, the petitioner filed a representation before the District Magistrate, Howrah, which was strongly recommended by the Block Development Officer, Domjur. The Secretary of Howrah Zilla Parishad by a letter addressed to the Assistant Secretary Government of West Bengal. Planning and Development Department, also requested him to look into the matter and take appropriate action with regard to the appointment of the petitioner against the vacant post of Night Guard-cum-Durwan in the concerned block. The Block Development Officer had also written a letter dated 30th January, 1995 to the Assistant Secretary to the Government of West Bengal, recommending the case of the petitioner. However, the District Magistrate, Howrah, by a letter dated 6.3.95 directed the Block Development Officer, Domjur, to issue offer of appointment to Sasanka Kumar Bera on compassionate ground. The petitioner relying upon a circular letter dated 3rd August, 1979, submits that he should have been regularised in service. 5. However, the District Magistrate, Howrah, by a letter dated 6.3.95 directed the Block Development Officer, Domjur, to issue offer of appointment to Sasanka Kumar Bera on compassionate ground. The petitioner relying upon a circular letter dated 3rd August, 1979, submits that he should have been regularised in service. 5. The petitioner, when questioned, conceded that prior to his appointment, the provisions of the West Bengal Recruitment Rules, which came into force in the year 1971, were not complied with in so far as the concerned Employment Exchange was not notified relating to the existing vacancy. The petitioner was initially appointed only against a particular Scheme. He was appointed as a Night Guard-cum-Durwan only on 25.8.94 by the Block Development Officer. The Block Development Officer, in terms of a circular letter issued by the State has jurisdiction to appoint Night Guard-cum-Durwan only in case of leave vacancy. The said circular must be deemed to have lost its force after coming into force the Recruitment Rules. 6. The petitioner's case evidently does not come within the purview of the circular letter dated 3rd August, 1979 as he was appointed as a Night Guard-cum-Durwan only on 25.8.94, and his services were terminated on 10.2.95. It is pertinent to note that such purported policy decision dated 3rd August, 1979, cannot override the Recruitment Rules which have been framed under the proviso appended to Article 309 of the Constitution of India. Appointment on compassionate grounds and/or regularisation of service can be done only in terms of the statutory rules or under executive instructions in absence of such statutory rules. It has not been and cannot be disputed that such Recruitment Rules have been framed by the State of West Bengal. The Supreme Court of India and this Court in a number of decisions have held that regularisation cannot be a mode of service unless there exists a statutory rule. The Supreme Court even in the case of workman has held that the provisions of the Industrial Disputes Act, 1947, do not confer any right upon the workman to be absorbed in the services only because be had completed 240 days of work. See (1) Madhyamik Siksha Parishad, U.P. v. Anil Kumar Mishra & Ors., reported in AIR 1994 SC 1368. See (1) Madhyamik Siksha Parishad, U.P. v. Anil Kumar Mishra & Ors., reported in AIR 1994 SC 1368. The Supreme Court has also clearly held that if a scheme is made for regularisation of the employees, a person cannot claim regularisation automatically unless and until the procedures laid down therein are scrupulously followed. Reference in this connection may be made to the decision reported in (2) AIR 1995 SC 413 . Yet recently, the Supreme Court has held that a person who enters through the back door must go by that door. See (3) 1994(2) SCC 204 . In a recent decision in the case of (4) State of Jammu and Kashmir v. Narinder Mohan, reported in 1994(2) SCC 630 , the Supreme Court has clearly held that any appointment made in violation of the mandatory provisions of the statute would be a nullity. The aforementioned decision has also been followed by the Supreme Court in later decisions. 7. In view of the aforementioned authoritative pronouncements of the Supreme Court of India, it is not possible for this Court to grant the reliefs sought for by the petitioner. However, keeping in view the fact that the petitioner has worked for a number of years and his work has been found satisfactory, interest of justice will be sub-served if the case of the petitioner is considered for appointment in any vacant post along with all other eligible candidates in terms of the Recruitment Rules as also Articles 14 and 16 of the Constitution of India. In the event the petitioner is selected, it will be desirable that the concerned authorities relax the age bar of the petitioner. I hope and trust that the vacant post, if any, of Night Guard-cum-Durwan or any other post, which is lying vacant, shall be filled up in accordance with law at an early date. 8. This application is dismissed with the aforementioned observations. Let a plain copy of this order countersigned by the Assistant Registrar (Court) be given to the petitioner.