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2013 DIGILAW 85 (CAL)

Satyabrata Chaudhuri v. STATE OF WEST BENGAL

2013-02-12

PRASENJIT MANDAL

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JUDGMENT PRASENJIT MANDAL, J. The petitioner holding the Masters degree (M.Sc.) in Organic Chemistry from the University of Calcutta in 1995 and M. Phill. in Chemistry from the University of Vinayaka Missions University, Tamil Nadu, is having an excellent academic career right from Madhyamik level onwards, and is presently engaged as a lecturer in Chemistry for the last 11 years at Central Footwear Training Center, Budge Budge on purely contract basis since November 27, 2001 under the renewable one year period followed by six months period without regularization and enhancement of pay. Previously he joined at Women’s Polytechnic, Jodhpur Park as a part time lecturer in Chemistry on December 5, 1996. He worked in the same capacity till January 16, 1998 and thereafter, he worked also as an ad hoc lecturer in Chemistry from January 17, 1998 to August 16, 2000 in the said College. Then on August 17, 2000 the petitioner was told that his service was no longer required by the respondent authorities as a candidate selected by the Public Service Commission, joined in his place. Thereafter, on November 29, 2000 the petitioner was appointed at Raninagar Polytechnic, sheikpara, Murshidabad on contract basis, but, he could not join. The petitioner submitted a representation to the concerned authority for regularization of his service. Thereafter, on November 27, 2001 he joined as a lecturer in Chemistry at Central Footwear Training Centre, Budge Budge on purely contract basis. The Government increased the salary to Rs.14,980/- for all contractual lecturers in March 2007 and then on February 29, 2012 the salary was further increased to Rs.21,400/-, but, the petitioner is not getting the same. The Cabinet took a decision for regularization of the petitioner, but, no effect. As such, the petitioner has prayed for writ of mandamus directing upon the respondent authorities to allow the petitioner to be considered for regularization in the post of lecturer in Chemistry w.e.f. January 1, 2001 as per letter dated March 15, 2001 of the respondent no.7 and other certain reliefs. Now, the question is whether the reliefs as sought for can be granted in favour of the petitioner. Having heard the learned Advocates of both the sides and on perusal of the materials on record, I find that there is no doubt that the petitioner is a qualified teacher having M.Sc. Now, the question is whether the reliefs as sought for can be granted in favour of the petitioner. Having heard the learned Advocates of both the sides and on perusal of the materials on record, I find that there is no doubt that the petitioner is a qualified teacher having M.Sc. in Chemistry from the University of Calcutta with good academic career and M.Phill from the University of Vinayaka Missions University, Tamil Nadu. He has been working either on ad hoc temporary basis or contractual basis with a rider that he would work till the post is filled up by a regular candidate, selected by the Public Service Commission, West Bengal. The grievance of the petitioner is that nine lecturers having AMIE, AIIA qualifications and inferior quality, etc., who are not even eligible for contractual lecturers, have been absorbed on regular basis. The petitioner having qualifications as stated above has been deprived from being appointed in the regular service and as such, right to equality has not been maintained. From the Annexure P-3 appearing at Page No.58, i.e., the Memo dated March 15, 2001 of the Department of Technical Education & Training, Polytechnic Branch, Bikash Bhawan it appears that the Governor has been pleased to order that the lecturers in Engineering and Non-Engineering subjects working up to December 31, 2000 on ad hoc basis in different Government Polytechnics of the State having the requisite qualifications as per existing Recruitment Rules shall be absorbed against the regular posts in the West Bengal General Service w.e.f. January 1, 2001. Relying on this Memo dated March 15, 2001, the petitioner submitted his representation dated March 27, 2001 praying for regularization of his service as a lecturer in Chemistry in any Government Polytechnic indicating the grounds for which he could not join the Raninagar Polytechnic, Murshidabad on contractual basis on the ground of illness of his and his mother, who was being treated by Chemo Therapy and Radio Therapy for throat Carcinoma. Mr. Manas Kumar Barman, learned Advocate appearing for the petitioner has drawn my attention to Annexure P-8 appearing at Page no.72 and thus, he has submitted that the lecturers such as Sri Parimal Kumar Pal, Sri Pradip Kumar Basu & Sri Deepandra Bazracharya having the qualification of AMIE only which is less than the qualification of M.Sc. Mr. Manas Kumar Barman, learned Advocate appearing for the petitioner has drawn my attention to Annexure P-8 appearing at Page no.72 and thus, he has submitted that the lecturers such as Sri Parimal Kumar Pal, Sri Pradip Kumar Basu & Sri Deepandra Bazracharya having the qualification of AMIE only which is less than the qualification of M.Sc. and having appointed on ad hoc basis or contractual basis for a period of six months only, were absorbed in the posts of lecturers on regular basis. He has also pointed out that nine such candidates have been absorbed on regular basis under a regular scale, but, the petitioner has not been considered though he possesses the requisite qualifications for being absorbed. His appointment as temporary service is being renewed from time to time on contract basis for a period of one year or till the post is filled up by a regular candidate selected by the Public Service Commission. Thus, the petitioner is being deprived of the benefit of the regular service. Thus, discrimination has been done to his client. Mr. Barman has referred to the decision of In Re: Funia Done reported in (2013) 1 WBLR (Cal) 256 and thus, he has submitted that when an employee fulfills the criteria for being absorbed in a regular post and there is nothing to show that the petitioner has been recruited in an unlawful manner the State ought to have regularized service long time ago. With due respect to Mr. Barman, I am of the view that the facts in that case are completely different from the present one. In the instant case, the letters of appointment as annexed to the petition indicate the conditions of service. So, the petitioner is bound by such conditions. Thisdecision will not be helpful to the petitioner. He has also referred to the decision of Sri Ashim De Chowdhury v. Garden Reach Shipbuilders & Engineerings LTD. & Ors. reported in (2012) 4 WBLR (Cal) 146 and thus, he has submitted that four year diploma in Mechanical Engineering is not equivalent to a Higher Secondary degree when the selection of the private respondent was made the order of appointment was set aside and direction for fresh application was given. With due regards to Mr. Barman, I hold that this decision is not applicable in the instance case. Mr. With due regards to Mr. Barman, I hold that this decision is not applicable in the instance case. Mr. Barman has also contended that there is a note of the Hon’ble Chief Minister and the Hon’ble Finance Minister for regularization of the service of five contractual Lecturers who were engaged before 2006 and he draws my attention to the page no.11 of the supplementary affidavit. Anyway, I do not find any final order in this respect. There is no indication that the petitioner shall be appointed. So, in my view, this material will not be favourable to the petitioner. On the other hand, Mrs. Seba Roy, learned Advocate appearing for the respondent, has contended that the petitioner could not be absorbed on regular post in view of the fact that, though the petitioner worked as lecturer in Chemistry at Women’s Polytechnic, Jodhpur, that post was filled up by a regular candidate selected by the Public Service Commission and as such, the ad hoc appointment of Sri Chaudhuri had been terminated as per terms of his appointment. The writ petitioner did not fulfill the terms of eligibility as per Memo dated March 15, 2001 by working up to December 31, 2000 on ad hoc basis for the purpose of being considered for absorption against a regular post. The petitioner has been working as lecturer in Chemistry at Central Footwear Training Center, Budge Budge w.e.f. November 27, 2001 on contractual basis to continue the said post till the post is filled up by a regular candidate selected by the Public Service Commission, West Bengal. The appointment was made on temporary basis and liable to be terminated at any time. So, it is clear that such appointment does not ensure regular appointment in this capacity and no claim in this respect shall be entertained in future. Mrs. Roy has also contended that previously, the petitioner moved the State Administrative Tribunal, West Bengal by filing an application being O.A. No.521 of 2001, which was disposed of directing the respondents to consider the representation by passing a reasoned order. The respondents considered the representation of the petitioner in view of the Memo dated March 15, 2001 and rejected the prayer of the petitioner. This being the position, the petitioner is not entitled to get any relief on the basis of the Memo dated March 15, 2001. Mr. The respondents considered the representation of the petitioner in view of the Memo dated March 15, 2001 and rejected the prayer of the petitioner. This being the position, the petitioner is not entitled to get any relief on the basis of the Memo dated March 15, 2001. Mr. Abhijit Gangopadhyay, learned Advocate appearing for the respondent no.6, has supported the contention of Mrs. Seba Roy. Having considered the submissions advanced by the learned Advocates of both the sides and on perusal of the materials on record, I find that though the petitioner possesses the requisite qualifications for being appointed as a regular lecturer and he has been working as lecturer since December 1996 in different Colleges, his performance of job had been interrupted by the fact that after August 17, 2000 the petitioner was not having the post of lecturer either ad hoc or contractual basis for a considerable period up to November 26, 2001. So, he was deprived of the benefit of regularization on the basis of the Memo dated March 15, 2001. Anyway, even after that, the petitioner is not getting the increased remuneration of Rs.21,400/- per month which is being given to the other ad hoc or contractual lecturers. The petitioner did not claim such relief. On the other hand, he has challenged the Memo dated February 29, 2012 appearing as Annexure P-6 at page no.64. So, the question of payment of remuneration according to Annexure P-6 does not arise. Pursuant to the order dated August 17, 2001 passed by the West Bengal Administrative Tribunal in O.A. No.521 of 2001, the respondent no.7 passed the order dated 29/30th July, 2002 thereby rejecting the prayer of regularization of the petitioner on the basis of Memo dated March 15, 2001 vide Annexure P-4. The petitioner did not challenge the said decision and so the said decision had attained finality. The decision is, therefore, finding upon the petitioner. In view of the matter, I am of the opinion that the writ petitioner is not on the same footing with those of nine teachers whose services had been regularized. Those teachers were in service on December 31, 2000 while the petitioner was not in the same footing with those nine teachers as on December 31, 2000. In view of the matter, I am of the opinion that the writ petitioner is not on the same footing with those of nine teachers whose services had been regularized. Those teachers were in service on December 31, 2000 while the petitioner was not in the same footing with those nine teachers as on December 31, 2000. Accordingly, I am of the view that there is no discrimination at all and that there is no violation of Articles 14 & 16 of the Constitution of India. Therefore, I am constrained to hold that the petitioner is not entitled to get the reliefs as sought for in the writ petition. The writ application is, therefore, dismissed. However, there will be no order as to costs. Urgent xerox certified copy of this order, if applied for, be supplied to the learned Advocates for the parties on their usual undertaking.