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2017 DIGILAW 349 (CAL)

Sudip Bhattacharya v. State of West Bengal

2017-03-31

I.P.MUKERJI

body2017
JUDGMENT : W.P. No. 18073 (W) of 2016 1. The point involved, after it is finally decided by this court or any superior court will have a very wide and far reaching effect. The basic issues involved in this case are identical to those involved in the other cases. The decision in this case will necessarily govern the other cases also. 2. In the year 1988 the petitioner qualified in the Madhyamik examination conducted by the West Bengal Board of Secondary Education. 3. In 1997 he was appointed as a casual employee, in the vacant post of the Sanitary Assistant in Bolpur Municipality. The Chairman of the Municipality certified this appointment by his letter dated 3rd December, 2015. The petitioner has been discharging the function of a clerk. 4. Sometime in 2016 the Director of the local bodies, West Bengal and ex-officio Additional Secretary Municipal Affairs Department Government of West Bengal granted permission to the Municipality to fill up inter alia the sanctioned sole vacant post of Sanitary Assistant. On 13th July, 2016 the respondent-municipality inserted an advertisement in the Dainik Statesman for recruitment in the different posts under the said Municipality. The last date of submission of application form was 4th August, 2016 which was later extended till 6th September, 2016. 5. The writ petitioner was about 44 years of age when this writ was moved on 31st August, 2016. This court observed that a question of law was involved and that the facts were more or less admitted. The writ could be heard out without affidavits, as all the papers were before the court. An interim order was passed directing that the petitioner be permitted to participate in the selection process without prejudice to the rights and contentions of the parties. One post should not be filled up. It would abide by the result of the writ. A panel of candidates would be prepared including the writ petitioner if he qualified in the selection process to fill up the vacant post according to the decision in the writ. That interim order is still continuing. 6. The question of law before the court is this. The writ petitioner and other similarly situated persons are working as casual employees, on contract basis, in the posts to be filled up by the above selection process. That interim order is still continuing. 6. The question of law before the court is this. The writ petitioner and other similarly situated persons are working as casual employees, on contract basis, in the posts to be filled up by the above selection process. The writ petitioner says that he has rendered long service as a clerk/ sanitary assistant and that he be allowed to participate in the selection process. 7. It is said on behalf of the respondents that as per the rules of the Government the maximum age of a candidate participating in a selection process cannot be over 40 years. The respondents express their helplessness. They say that this age limit of 40 years is fixed by the rules. They cannot waive the requirement of the rules or extent the age limit. 8. Now, it is important to take a look at these rules. Under the West Bengal Municipal Employees (Recruitment) Rules, 2005 it was stated that in all cases of direct recruitment excepting in the posts of the Secretary, Tax Collecting Sarkar and Teacher the upper age limit shall be 37 years ( rule 2 (1) proviso). Sub rule (2) stated that the provisions of the West Bengal Service (Raising of Age limit) Rules, 1981 shall apply. It was also provided that the upper age limit may be relaxed by the State Government in the case of absorption of casual workers. 9. By an administrative order dated 23rd April, 2010 all casual workers with the government working for more than 10 years were allowed to be retained upto the age of 60 years. On 16th September, 2011 some clarifications were made to the above memorandum. Some additions were also made, the most important of which for the purposes of this case was the provision that the benefit of this memorandum would be applicable mutatis mutandis to panchayat bodies, ULB and statutory bodies. 10. It was said that since this provision had been made by the government there was no further scope of the writ petitioner being “absorbed” into the municipality as a permanent employee. 11. In any event, according to the respondents what the petitioner wants is not absorption but the right to participate in the selection process by age relaxation or raising of the age limit. 11. In any event, according to the respondents what the petitioner wants is not absorption but the right to participate in the selection process by age relaxation or raising of the age limit. On 30th December, 2011 the Governor in exercise of its powers under Section 309 of the Constitution of India amended the West Bengal Services (Raising of Age limit) Rules, 1981 by increasing the upper age limit recruitment to any post or service under the government or a statutory body, state companies etc to 40 years. The respondents did not have the power to raise the threshold. 12. It was further canvassed on behalf of the respondents that since the State Government had announced the above policy by which casual employees could work upto the age of 60 years and be provided reasonable pay, there was no further necessity of considering the alleged right of the employees to participate in the regular selection process by relaxation of the age bar. A larger bench decision of our court in Gobinda Chandra Mondal v. Principal, Rabindra Mahavidyalaya and connected matters reported in 2013 (1) CHN (CAL) 9 observed and held: “24. In view of the above discussion we conclude as follows: No ad hoc or temporary appointee can be absorbed nor be regularized in any post in Government or Government-aided establishment de hors Recruitment or Service Rule ordinarily. 25. If the appointment is made without undertaking selection procedure under Rule on ad hoc or temporary basis engaging the candidates having requisite qualification namely age and education at the time of appointment against substantive post the candidates in those cases shall be allowed to compete and/or participate in the selection process along with other eligible candidates at the time of regular recruitment process condoning the age as they have acquired right to be considered. Of course, their services must be continuous and without any break in the vacancy of substantive post at the time when the regularization is demanded and selection process undertaken. But in case where the appointees are not qualified at all and they have been engaged for rendering services as an ad hoc basis or temporary measure their case cannot be considered under any circumstances either against substantive post or the post yet to be created.” 13. Now, I come to my findings. 14. But in case where the appointees are not qualified at all and they have been engaged for rendering services as an ad hoc basis or temporary measure their case cannot be considered under any circumstances either against substantive post or the post yet to be created.” 13. Now, I come to my findings. 14. The West Bengal Municipal Employees (Recruitment) Rules, 2005 were made in exercise of the power granted by Section 417, 54 (4) of the West Bengal Municipal Act, 1993 to the Governor to make rules. The last proviso to rule 4 stipulated that the upper age limit may be relaxed by the State Government in the case of absorption of casual workers. I see no difference between “absorption” and “recruitment”. One would have to think very narrowly to give different connotations to these two words, in this context. Absorption only means that the source of recruitment is not from the market but from the organisation itself. Fixing or raising of the age limit for participation in the selection process was made by the West Bengal Service (Raising of Age limit) Rules, 1981. This was for the purpose of setting a general age criterion within which a candidate could take part in the selection process. 15. This is quite different from the power of the State Government to relax the upper age limit for “absorption of casual workers” provided in the last proviso. This power relates to candidate or a group based age relaxation. 16. The special Bench of this court in the case of Gobinda Chandra Mondal v. Principal, Rabindra Mahavidyalaya and connected matters reported in 2013 (1) CHN (CAL) 9 set the guidelines for exercise of this power. These guidelines inter alia said that the candidate should have the requisite qualification. The candidate ought to have been engaged to work against a vacancy in the substantive post. To this may be added the observation of the Supreme Court in the case of State of Karnataka v. M.L. Kesari reported in AIR 2010 SC 2587 stipulating that the employee should have worked continuously for a significant period of time and employed voluntarily by the employer. 17. There is no dispute that the writ petitioner possesses the above eligibility criteria. 18. 17. There is no dispute that the writ petitioner possesses the above eligibility criteria. 18. I do not agree with the submission made on behalf of the respondents that just because the State Government had announced a policy whereby the casual workers are given job security by protecting their length of employment upto the age of 60 years and giving them reasonable remuneration, his right to seek regular employment is closed. Undoubtedly, under the above notification, casual employees have been given job security and reasonable pay but in no manner has this notification taken away his right to participate in the selection process if he is eligible. The stand taken by the respondents that there they have no power to condone the age bar for casual employees is absolutely untenable as under the aforesaid Municipal Rules, 2005 the State Government sufficiently enjoys the power. 19. In those circumstances, I direct the concerned respondents to relax or extend the maximum age limit for the writ petitioner suitably and will consider him as an eligible candidate for the above post. This age relaxation should be made within 4 weeks of communication of this order. The respondent municipality will declare the results of the selection process within a further period of 4 weeks. This writ application is disposed of. OTHER WRITS 20. The facts of the above case are similar to W.P. No. 18081 (W) of 2016 W.P. No. 18076 (W) of 2016 + W.P. No. 18079 (W) of 2016+ W.P. 17205 (W) of 2016+ W.P. No. 17208 (W) of 2016+ W.P. No. 17202 (W) of 2016+W.P. No. 17198 (W) of 2016. 21. The writ applications W.P. No. 18073 (W) of 2016, W.P. No. 18081 (W) of 2016, W.P. No. 18076 (W) of 2016, W.P. No. 18079 (W) of 2016 relate to the selection process in Bolpur Municipality. The writ applications W.P. No. 17205 (W) of 2016, W.P. No. 17208 (W) of 2016, W.P. No. 17202 (W) of 2016, W.P. No. 17198 (W) of 2016 relate to Dinhata Municipality. The petitioners in the Bolpur Municipality cases are aspirants for the posts of sanitary assistant (W.P. No. 18073 (W) of 2016, W.P. No. 18076 (W) of 2016) of clerk OBC (W.P. No. 18081 (W) of 2016) and clerk (W.P. No. 18079 (W) of 2016). The petitioners in the Bolpur Municipality cases are aspirants for the posts of sanitary assistant (W.P. No. 18073 (W) of 2016, W.P. No. 18076 (W) of 2016) of clerk OBC (W.P. No. 18081 (W) of 2016) and clerk (W.P. No. 18079 (W) of 2016). The writ petitioners in the Dinhata case are aspirants for the post of peon except the petitioner in W.P. No. 17202 (W) of 2016 who has applied for the post of mazdoor. 22. For the self-same reasons as have been given in that case, I direct the concerned respondents to relax or extend the maximum age limit for each of the writ petitioners and consider him as an eligible candidate for the post applied for. This age relaxation should be made within 4 weeks of communication of this order. The respondent municipality will declare the results of the selection process within a further period of 4 weeks. 23. These writ applications are accordingly disposed of. 24. Certified photocopy of this Judgment and order, if applied for, be supplied to the parties upon compliance with all requisite formalities. LATER 25. Since the Judgements in the above applications have been pronounced today, on a day when cease work has been called by the Bar Council of India, it will be open for any party aggrieved by the order to pray for stay of these Judgements and orders, upon mentioning, in a subsequent day, upon notice to the other parties.