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2010 DIGILAW 1242 (CAL)

Samir Krishna Bose v. The State Of West Bengal

2010-10-04

I.P.MUKERJI, PINAKI CHANDRA GHOSE

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Judgment :- I.P MUKERJI, J This is an application under Article 226 of the Constitution of India challenging a judgment and order dated 8th September 2008 passed by the West Bengal Administrative Tribunal. By that judgment and order the application being O.A. No. 1577 of 2004 of the writ petitioners was dismissed, by a very well reasoned order. Now, we turn to the facts. The writ petitioners were temporary peons in the Department of Archeology, Government of West Bengal. They were made permanent on 20th July 1979 on completion of five years of service. They were Group D Staff. Many powers, duties and functions under the Antiquities and Arts and Treasures Act 1972 are under the control of the Department of Information and Cultural Affairs, Government of West Bengal. They had been maintaining five circle offices for implementation of the said Act under the Administrative control of the Director of Archeology, Government of West Bengal. The writ petitioners were working there. In 1987 the Government of West Bengal decided to reduce the strength of the staff in the circle offices. Three circle offices were abolished. Their staff were declared surplus. These staff members were absorbed in the department of Information and Cultural Affairs, Government of West Bengal. On 7th March 1996, the Government of West Bengal abolished five posts out of existing nine posts. These five posts included two posts of peons enjoyed by the writ petitioners. That memorandum stated that the posts would be vacated by the present incumbents by promotion, transfer, superannuation or any other mode. By an administrative order dated 3rd July 2003 the service of the petitioners was placed under the disposal of the Heritage Commission. This order dated 3rd July 2003 was challenged before the tribunal. The case of the petitioners is that they were transferred without giving them equivalent posts, without disclosing the nature of duties to be performed. Further, they could not be transferred to a non-government organisation. They also said that the Principal Secretary of the Information and Cultural Affairs Department could not issue such order under the West Bengal Services (Specification, Control and Appeal) Rules 1971 superseding the Director of Archeology. Before proceeding further with the matter it may be mentioned that the West Bengal Heritage Commission was established under the West Bengal Heritage Commission Act, 2001. These two peons were declared surplus, as aforesaid. Before proceeding further with the matter it may be mentioned that the West Bengal Heritage Commission was established under the West Bengal Heritage Commission Act, 2001. These two peons were declared surplus, as aforesaid. It is stated in the written arguments filed both by the West Bengal Heritage Commission and the State that this surplus staff which included the two petitioners were retained on humanitarian grounds. The posts would be abolished after the posts were vacated by promotion, transfer, superannuation and similar circumstances. With the establishment of the commission under the West Bengal Heritage Commission Act 2001 a proposal for appointment of these surplus staff in the commission was put up before the appointment committee of the Cabinet by the Information and Cultural Affairs Department. The said committee advised the said department to redeploy existing staff instead of fresh appointment. Accordingly, these writ petitioners were placed in the service of the commission. One submission made on behalf of the State as well as the said Heritage Commission is very significant. The two writ petitioners would get their salaries from the State. They would be employees of the State. Further, they are doing their duties according to the redeployment order and drawing their salaries accordingly. This redeployment is termed as functional redeployment. Rule 31 of the West Bengal Service Rules permits this kind of a posting. Rule 31 is as follows: “A Head of a Department may authorize any Government employee under his administrative control to proceed on duty to any part of the territory of India, whether within or beyond his own jurisdiction”. We are assured by the West Bengal Heritage Commission that the Writ Petitioners would be doing the same kind of work as they did in the department of Archeology. Further the commission informs us that the Principal Secretary Information and Cultural Affairs Department is the administrative head and superior controlling officer of all the four directorates including the directorate of Archeology. He was thus competent to place the service of the Writ Petitioners with the said commission. The tribunal, in our opinion has passed a very well considered and well reasoned order. It has held the following: “We find that while the services of the petitioners have been placed at the disposal of the Heritage Commission they continue to draw pay and allowances as before with their parent organisation. The tribunal, in our opinion has passed a very well considered and well reasoned order. It has held the following: “We find that while the services of the petitioners have been placed at the disposal of the Heritage Commission they continue to draw pay and allowances as before with their parent organisation. On account of the placement of their services with the Heritage Commission they have neither suffered any reduction in their status or pay nor have they been subjected to any illegal disadvantage. In effect there is no change in their service condition. Going by the facts and circumstances of the case along with a plain reading of the impugned order, we have no hesitation in concluding that the placement of the service at Heritage Commission is not a transfer under the West Bengal Service Rules but an order to utilize their services under rule 31 of W.B.S.R. Part I….. In this case, the petitioners have been assigned the duties in the Heritage Commission, and as such, there is no illegality in not seeking the option/consent for utilization of their services by the Heritage Commission. The argument of the petitioners that the order issued by the Principal Secretary, not being the appointing authority of the applicants, was bad in law is not tenable as the principal Secretary of the Department being a superior authority was well within his power to issue an order in compliance with the direction of the Appointment Committee of the Cabinet. He was, on the other hand, duty bound to comply with the order. With effectively no work to perform in the Archeology Directorate, the Respondent Authority instead of abolishing the post have chosen to redeploy the petitioners in the Heritage Commission without any adversely affecting their service condition in the interest of public service. We thus find no reason to interfere with the reasoned order passed by the Principal Secretary, department of Information and Cultural Affairs, Government of West Bengal. We, therefore, hold that the petitioners have not been able to make out any case for entitlement to relief as prayed for by them. The application is thus dismissed on contest, but without any costs.” In view of our observations above, we find no infirmity or illegality or irregularity in the said order of the Tribunal. Therefore, we find no merit in this Writ Application. It is accordingly dismissed. The application is thus dismissed on contest, but without any costs.” In view of our observations above, we find no infirmity or illegality or irregularity in the said order of the Tribunal. Therefore, we find no merit in this Writ Application. It is accordingly dismissed. While dismissing the writ we say that the writ petitioners are to be employees of the State and would enjoy the same service conditions as when they were under the Department of Archeology. However there will be no order as to costs. Urgent certified photocopy of this judgment and order, if applied for, to be provided upon complying with all formalities. I agree.