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2015 DIGILAW 710 (CAL)

Badal Chatterjee v. State of West Bengal

2015-08-21

DEBI PROSAD DEY

body2015
JUDGMENT : Debi Prosad Dey, J. The petitioner has sought for the cancellation of order dated 13.04.2005 as communicated to the petitioner by memo no. Nil dated 02.06.2005 by the Block Development Officer, Manbazar-II and Ex-Officio Executive Officer, Manbazar-II development block, Post and Police Station-Manbazar, District-Purulia being annexure P-10 on the ground that the Block Development Officer could not properly implement the guidelines provided in notification no.3598/PN/0/1/3S-114-2003 dated 8th October, 2003 and thereby the Block Development Officer has failed to regularise the service of the petitioner. 2. The case of the petitioner in brief is that the petitioner was working as a helper for repairing works of tubewells under the office of Manbazar Panchayat Samity from 06.05.1990 to 25.08.2004 on daily wages. The Sabhadhipati of Manbazar-II Panchayat Samity has accordingly issued a certificate in favour of the petitioner for the period from 06.05.1990 to 15.06.1992(annexure P/2). The name of petitioner also transpires in the list of contingent worker maintained by concerned Gram Panchayat (annexure P/3). The concerned Gram Panchayat has also issued a certificate in favour of the petitioner showing that the petitioner worked under the said Panchayat as helper of repairing work of tubewell for the period of 19.08.1993 to 03.06.1998(annexure P/4). 3. The department of Panchayat and Rural Development of the Government of West Bengal issued notification no.3598/PN/0/1/3S-114/2003 dated 8th October, 2003, published in the Kolkata Gazette on 22nd October, 2003, under the signature of M.N. Ray, Secretary to the Government of West Bengal, whereby and where under he gave some guidelines for regularising the irregular appointments, if any, given by the respective Gram Panchayats, Panchayat Samities and Zilla Parishads, as the case may be. 4. The concerned Panchayat Samity accordingly forwarded a list of employees to be regularised in pursuance of the aforesaid notification through the District Magistrate, Purulia to the concerned authority for regularisation of their service but the name of the petitioner was not included in the said list. The petitioner and some other persons then made a representation dated 12.02.2004 before the Executive Officer for regularisation of their service by adopting a resolution of Panchayat Samity to that effect. The said representation was not adhered to. 5. The petitioner and some other persons then made a representation dated 12.02.2004 before the Executive Officer for regularisation of their service by adopting a resolution of Panchayat Samity to that effect. The said representation was not adhered to. 5. Being aggrieved by such in-action on the part of the authority the petitioner took resort to the Hon'ble High Court at Calcutta by filing writ petition no.4475(W) of 2005, wherein his Lordship Hon'ble Justice Jyotirmay Bhattacharya after hearing both the parties directed respondent No.6 i.e. The Block Development Officer, Block and Ex-Officio Executive Officer, Manbazar-II post and Police Station-Manbazar, District-Purulia to consider and dispose of the petitioner's said claim for regularisation by passing a reasoned order, after giving an opportunity of hearing to the petitioner within a period of 8 weeks from the date of communication of such order. 6. Pursuant to such direction of the Hon'ble High Court respondent No.6 i.e. the Block Development Officer issued notice to the petitioner on 08.04.2005 and requested the petitioner to appear in the office of Block Development Officer with all relevant records and documents connecting there with on 13.04.2005. The petitioner duly appeared before the Block Development Officer with all records. The Block Development Officer ultimately passed a reasoned order and communicated the same to the petitioner whereby and where under Block Development Officer has rejected the prayer of the petitioner. 7. Being aggrieved by the said order of the Block Development Officer, Manbazar-II and Ex-Officio Executive Officer of Manbazar Panchayat Samity the petitioner has filed this petition under article 226 of the Constitution of India with the prayer for cancellation of the said order on the ground that the Block Development Officer has failed to implement the notification issued by the Government of West Bengal in it's true perspective and with the prayer that a direction be given upon the concerned Block Development Officer for not filling up the vacancies of the Panchayat Samity in question till the disposal of this writ application. 8. The specific prayer of the petitioner is that in accordance with the notification issued by the Government of West Bengal, the petitioner is entitled to be regularised in the service under the Panchayat Samity and accordingly necessary directions be given to the concerned Block Development Authority for cancellation of his order dated 13.04.2005. 8. The specific prayer of the petitioner is that in accordance with the notification issued by the Government of West Bengal, the petitioner is entitled to be regularised in the service under the Panchayat Samity and accordingly necessary directions be given to the concerned Block Development Authority for cancellation of his order dated 13.04.2005. The further case of the petitioner is that the petitioner should be accepted as eligible worker engaged in a perennial nature of work since the petitioner had been working for more than 3 years prior to 13.03.1996, the petitioner should be regularised in terms of the Government notification No. 3598/PN/0/1/3S-114/2003 dated 8th day of October, 2003. 9. Unfortunately, despite specific directions given by this Court the state of West Bengal did not file any affidavit in opposition. The petitioner has filed affidavit showing service of notice upon all the respondents. 10. Learned Advocate, Ashim Kr. Ganguly appeared on behalf of State of West Bengal. 11. On consent of both the learned Advocates the writ petition was heard on 30th June, 2015 since the matter was pending more than a decade for disposal. The notification issued by Government of West Bengal being no.3598/PN/O/1/3S-114/2003 dated 8th October, 2003 has been highlighted by learned Advocate for the petitioner in order to establish the case of the petitioner that the petitioner is entitled to get himself absorbed in the service of concerned Panchayat Samity on the strength of such Government notification. Learned Advocate, Tarapada Das appearing on behalf of petitioner contended that the Block Development Officer of Manbazar-II could not properly appreciate the purport and meaning of the notification and thereby came to an erroneous decision by rejecting prayer of the petitioner. Learned Advocate, Mr. Das appearing on behalf of the petitioner contended that the certificate issued by the then Block Development Officer clearly revealed that the petitioner was engaged in perennial nature of work as helper for repairing works of tubewalls under the Panchayat Samity for more than 3 years prior to 13.03.1996 but the Block Development Officer did not pay any heed to the directions/guidelines given in the aforesaid notification and thus decided the matter against the petitioner. Learned Advocate, Ashim Kr. Learned Advocate, Ashim Kr. Ganguly appearing on behalf of the state of West Bengal on the contrary contended that the case of the petitioner did not come within the purview of the notification issued by the state of West Bengal and accordingly the Block Development Officer was squarely justified in rejecting the case of the petitioner. Learned Advocate Mr. Ganguly appearing on behalf of the Panchayat Samity pointed out that the conditions laid down in the notification mentioned herein above were not complied with by the petitioner and accordingly the petitioner could not be accepted/absorbed in the service of the concerned Panchayat Samity on the strength of such notification issued by the Government of West Bengal. 12. The notification of the Government of West Bengal mentioned herein above has been annexed with the writ petition as annexure P5. It transpires from the said notification that the Government has issued such notification giving some guiding principles regarding absorption of the employees of respective Gram Panchayat, Panchayat Samity and Zilla Parishad. 13. It is apparent from such notification that the pre-condition for being absorbed in the respective Gram Panchayat, Panchayat Samity and Zilla Parishad is that such casual labour must be engaged in a perennial nature of work on the strength of a resolution in a meeting of the concerned Panchayat bodies in favour of such engagement and has rendered services for a continuous period of more than 3 years(for at least 240 days of work in each such calendar year for 3 consecutive years) within last 5 years prior to 13.03.1996. The fifth clause says that the wages of casual and such other category of worker must have been paid out of the own fund of the concerned Panchayat Body and not out of the scheme contingencies. 14. Therefore, the petitioner is duty bound to establish that the petitioner was engaged in a perennial nature of work on the strength of a resolution adopted in a meeting of the concerned Panchayat Bodies in favour of such engagement. 15. There is absolutely no document to establish that the petitioner was engaged in such work on the strength of a resolution adopted by the concerned Panchayat Samity. There is absolutely no document to establish that the wages of the petitioner was ever paid out of the own fund of the concerned Panchayat Body. 15. There is absolutely no document to establish that the petitioner was engaged in such work on the strength of a resolution adopted by the concerned Panchayat Samity. There is absolutely no document to establish that the wages of the petitioner was ever paid out of the own fund of the concerned Panchayat Body. It is apparent from annexure P10 i.e. the order passed by Block Development Officer that the rule of Natural Justice was followed and the petitioner was given an opportunity of hearing before passing such order by the Block Development Officer. It is apparent from such annexure P10 that the petitioner used to work under Rural Welfare Scheme and the wages of the petitioner used to be paid out of the scheme contingencies fund of Rural Welfare Scheme and not out of the own fund of Panchayat Samity. Secondly, there was no resolution of Panchayat on the strength of which the petitioner was engaged on daily wages. On the contrary, the wages of the petitioner was paid from the fund of the Rural Welfare Scheme. Thirdly, the nature of work of the petitioner was not of a kind of perennial nature of work and not against any permanent vacancy. 16. The petitioner has sought for cancellation of the order passed by the Block Development Officer and simultaneously has prayed for regularisation of his service under the concerned Panchayat Samity. Except the oral argument advanced by learned Advocate appearing on behalf of the petitioner I do not find any material in the four corner in the writ petition so as to come to a definite conclusion that the order passed by the Block Development Officer suffers from illegality or is in-violation of the rule of natural justice. I would like to deal with the regularisation of service in the following paragraphs on the basis of the order passed by writ Court. From the factual aspect of this case it may safely be stated that the order of the Block Development Officer is not suffering from any illegality. 17. Regularization of service has to be done in terms of specific provision of the statute and any violation of recruitment rules is illegal. It is settled principle of law that regularisation cannot be a mode of recruitment contrary to mandatory provisions of relevant statute. 18. 17. Regularization of service has to be done in terms of specific provision of the statute and any violation of recruitment rules is illegal. It is settled principle of law that regularisation cannot be a mode of recruitment contrary to mandatory provisions of relevant statute. 18. In that view of this case, the Block Development Officer rightly rejected the claim of the petitioner regarding his absorption in the concerned Panchayat Samity. 19. On careful consideration of annexure P5 and P10 I do not find any irregularity so as to cancel the order passed by Block Development Officer of Manbazar-II, District-Purulia. 20. Learned Advocate appearing on behalf of the petitioner simply submitted the following decision without placing the same and without referring the decisions with regard to the applicability of the said decision in the given facts and circumstances of this case. However, in order to remain clear to my conscience, I would like to deal with the decisions which have been simply handed over to this Court by learned Advocate for the petitioner. 21. In Amar Kanta Rai v. State of Bihar and others (Civil Appeal No. 2835 of 2015 arising out of SLP (Civil Suit no. 20169 of 2013) the Hon'ble Apex Court directed the regularisation of the night guard of Ramashray Baleswar College, taking into consideration the relevant notifications of the Bihar Government and having regard to the fact that the petitioner continued to work for 29 years as night guard in the said college. The notification of the Panchayat department issued by the state of West Bengal has not been considered in such case and accordingly the said case is not at all applicable in the given facts and circumstances of this case. 22. The unreported decision of Civil Appeal No.2381 of 2007 (State of Uttar Pradesh v. Charan Sing) deals with the dispute under section 6N of the Uttar Pradesh Industrial Disputes Act 1947 and accordingly has had no application in the given facts and circumstances of this case. 23. 22. The unreported decision of Civil Appeal No.2381 of 2007 (State of Uttar Pradesh v. Charan Sing) deals with the dispute under section 6N of the Uttar Pradesh Industrial Disputes Act 1947 and accordingly has had no application in the given facts and circumstances of this case. 23. The judgment of the Division Bench of our High Court (Nemai Chandra Chatterjee and others v. State of West Bengal and others) in WPST No.532 of 2010 also is not applicable since the Division Bench of this High Court has considered as to whether the temporary service rendered initially by an employee should be reckoned for the purpose of qualifying service for payment of pension if it is followed immediately by permanent service. I find no application of the proposition of law discussed and dealt with by the Division Bench in such case in the context of the present case. Hon'ble Supreme Court in the decision reported in (2003) II LLJ 948 DEL (Union of India v. Lekraj & Ors.) has dealt with the regularisation of an employee in the post of store issuer, who was initially appointed as casual labour in group-D category but subsequently was given a temporary status. Hon'ble Apex Court relying on a decision of Calcutta High Court reported in 1998(2) CHN 241 (Director of Public Instructions of West Bengal and others v. Dr. Ashis Pal and others) has specifically held that regularisation cannot be a mode of recruitment. Secondly High Court has no jurisdiction to issue an order directing regularisation of service contrary to mandatory provisions of the relevant statute. Thirdly, an appointment made in violation of recruitment rules is illegal and is violative of article 14 and 16 of the constitution. Hon'ble Apex Court has further been pleased to hold that the question as to whether the petitioner's had fulfilled the essential conditions for regularisation or not is essentially a question of fact. In law nobody is entitled to claim regularisation unless there exists any statutory provision in this regard. 24. The petitioner is claiming for cancellation of the order passed by the block Development Officer but the petitioner could not raise any ground of arbitrariness or violation of Natural Justice for cancellation of such order of the Block Development Officer. The decisions cited by learned Advocate for the petitioner are not at all supporting the case of the petitioner. 24. The petitioner is claiming for cancellation of the order passed by the block Development Officer but the petitioner could not raise any ground of arbitrariness or violation of Natural Justice for cancellation of such order of the Block Development Officer. The decisions cited by learned Advocate for the petitioner are not at all supporting the case of the petitioner. On the contrary decisions referred to herein above are absolutely against the case of the petitioner. 25. In the premises set forth above I do not find any reason to invoke the writ jurisdiction of this Court so as to help the cause of the petitioner. 26. The petition being devoid of merit is thus dismissed. 27. I make no order as to cost. Urgent photostat certified copy of this order, if applied for, be given to the articles as expeditiously as possible, after complying with all the formalities.