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2018 DIGILAW 201 (CAL)

State of West Bengal v. Niyati Bouri

2018-01-31

BISWANATH SOMADDER, MOUSHUMI BHATTACHARYA

body2018
JUDGMENT : Biswanath Somadder, J. 1. By consent of the parties, the appeal is treated as on day's list and taken up for consideration along with the application for stay. The instant appeal arises out of a judgment and order dated 8th December, 2016, passed by a learned Single Judge in WP 27327 (W) of 2016 (Smt. Niyati Bouri v. The State of West Bengal & Ors.). 2. The appellants before us are the State of West Bengal and its Director of Local Bodies, 3. On 8th January, 2018, this Court had directed the State of West Bengal - being represented by its Advocate General - to obtain specific instructions as to whether the different local bodies throughout the State of West Bengal have renewed the contractual engagements of Sishu Siksha Sahayikas who are similarly situate and circumstanced as the respondent No. 1/writ petitioner herein. 4. Today, when the matter is taken up for consideration, the learned Advocate General submits that in certain cases, persons who are similarly situate and circumstanced as the respondent No. 1/writ petitioner herein have had their contractual engagements renewed pursuant to orders passed by the writ Court. 5. Now, the question which arises for consideration is whether the respondent No. 1/writ petitioner can take benefit of such renewal of contractual engagements of those other persons while invoking Article 14 of the Constitution of India. 6. Before we proceed to answer this question, we need to take note of the relevant facts of the instant case. The respondent No. 1/writ petitioner was engaged as a Sishu Siksha Sahayika in respect of Huddabi Adibasi Sishu Siksha Kendra which is situated in the district of Burdwan. She was initially engaged in the year 2001 and her engagement was governed by certain terms and conditions as spelt out in an agreement which had a lifespan of one year. The agreement, however, was renewable from year to year and her engagement was renewed periodically. The last such renewal took effect on and from 7th February, 2014, and her engagement was to expire on 6th February, 2015, However, before expiry of the period of her last engagement, the Director of Local Bodies, West Bengal, on 30th April, 2014, issued a memorandum refusing to continue her services on the ground that she was under-qualified. The last such renewal took effect on and from 7th February, 2014, and her engagement was to expire on 6th February, 2015, However, before expiry of the period of her last engagement, the Director of Local Bodies, West Bengal, on 30th April, 2014, issued a memorandum refusing to continue her services on the ground that she was under-qualified. The respondent No. 1/writ petitioner decided to challenge the said memorandum dated 30th April, 2014, by filing a writ petition wherefrom the impugned judgment and order emanates. For convenience, the impugned judgment and order dated 8th December, 2016, is reproduced hereinbelow :- "This is a writ by a Siksha Sahayika. She says that she has been working for about 13 years. On 30th April, 2014 the Directorate of Local Bodies, Government of West Bengal issued a memorandum signed by the Director refusing to continue her services on the ground that she was underqualified. After about 13 years of service, the Government cannot say that a Sahayika is underqualified. They are prevented by rule of estoppel from making this contention. Therefore that remark of the Director is expunged from annexure-A to the said memorandum. The Director is directed to reconsider the case of the petitioner in accordance with the above observation within one month of communication of this order and to communicate his decision forthwith. All the papers are before this Court. Affidavits were not invited. The allegations contained in the writ petition are deemed not to have been admitted." 7. A bare perusal of the impugned judgment and order reveals that the learned Single Judge has invoked the rule of estoppel considering that the respondent No. 1/writ petitioner had completed "13 years of service". It was under such circumstances that the learned Single Judge proceeded to dispose of the writ petition with a mandatory direction upon the Director of the Local Bodies, Government of West Bengal, to reconsider the case of the writ petitioner within a certain time frame as specified in the impugned order. 8. We are unable to accept the reasoning provided by the learned Single Judge while issuing a mandatory direction upon the Director of Local Bodies. 8. We are unable to accept the reasoning provided by the learned Single Judge while issuing a mandatory direction upon the Director of Local Bodies. First of all, a fundamental flaw which we notice in the impugned judgment and order is that the learned Single Judge has observed to the effect that the writ petitioner had completed "13 years of service" which was not even the writ petitioner's case before the learned Single Judge. Rather, the records before the learned Single Judge would have clearly demonstrated that the respondent No. 1/writ petitioner was merely in a contractual engagement on the basis of an agreement which had a lifespan of one year that could be renewed from time to time. As such, there is no question of applicability of the rule of estoppel which was sought to be invoked by the learned Single Judge. In any event, the rule of estoppel could not have been invoked in such a case where an engagement was governed purely by the terms and conditions of a contract which had a lifespan of one year, but was renewable. Merely because a contract has a clause for its renewal, such a clause cannot ipso facto translate into an enforceable legal right in favour of a person to come before the writ Court and seek issuance of a writ in the nature of mandamus directing the concerned authority to keep on renewing his/her contract on a year to year basis. 9. The fact that some of those who are similarly situate and circumstanced as the respondent No. 1/writ petitioner have had their contracts renewed through orders passed by the Writ Court cannot be a sufficient ground to invoke Article 14 of the Constitution of India since such invocation would tantamount to applying the doctrine of equality, negatively. Simply because the authorities have renewed the contractual engagement of other Sahayikas who are similarly situate and circumstanced as the respondent No. 1/writ petitioner, such action of the authority concerned cannot generate a mandate in favour of the respondent No. 1/writ petitioner on the touchstone of Article 14 of the Constitution of India to have her contractual engagement similarly renewed in the absence of any legally enforceable right. 10. We are, therefore, of the view that the impugned judgment and order cannot be sustained and is liable to be set aside and is accordingly set aside. 10. We are, therefore, of the view that the impugned judgment and order cannot be sustained and is liable to be set aside and is accordingly set aside. However, the Principal Secretary, Department of Municipal Affairs, Government of West Bengal, shall initiate appropriate action in accordance with law in respect of those Sahayikas whose engagements have renewed in spite of being similarly situate and circumstanced as the respondent No. 1/writ petitioner. The Principal Secretary shall also consider the grievances of the respondent No. 1/writ petitioner and come to a suitable decision in accordance with law. While coming to such a decision, the Principal Secretary, Department of Municipal Affairs, shall take into consideration the fact that the last renewal of engagement of the respondent No. 1/writ petitioner on 7th February, 2014, was valid till 6th February, 2015. 11. The entire exercise in terms of this order shall be completed by the Principal Secretary, Department of Municipal Affairs, as expeditiously as possible, preferably within a period of four weeks, but not later than six weeks from the date of communication of a photostat certified copy of this order. 12. The appeal and the application for stay stand disposed of accordingly. Urgent photostat certified copy of this judgment, if applied for, be given to the learned advocates for the parties. Moushumi Bhattacharya, J. I agree.