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2019 DIGILAW 369 (CAL)

Aswini Kumar v. State of West Bengal

2019-03-15

SUBRATA TALUKDAR

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JUDGMENT : 1. In this writ petition the petitioner challenges the Order dated 21st December, 2016 passed by the Block Development Officer, Jhalda II Development Block cum Executive Officer, Jhalda-II Panchayat Samiti rejecting the prayer of the petitioner to disburse the honorarium due to him for services rendered as a Homoeopathic Compounder (for short H. Compounder) at Majhidih Gram Panchayat (GP) since 2008. 2. Ms. Chatterjee, Learned Advocate of the petitioner, relies upon a Notification dated 23rd of May, 1988 of the Department of Health and Family Welfare (for short DHFW), Government of West Bengal. It is submitted that the staff of an approved Homoeopathic dispensary, i.e. a Homoeopathic Doctor (H. Doctor) and a H. Compounder will be engaged by the Pradhan of the GP in issue. Learned Advocate for the petitioner submits that the intention behind the Notification of 23rd of March, 1988 (supra) is to provide for one homoeopathic dispensary with a doctor and compounder for the GP. 3. Therefore, in view of the engagement of the petitioner by the then Pradhan of the GP in issue through a resolution of the GP dated the 5th of July, 2007 as communicated to the petitioner on the 2nd of June 2008, the petitioner has been since discharging his duties as a compounder uninterruptedly. However, Ms. Chatterjee submits, that inspite of release of funds for the purpose of paying honorarium at the GP level by the Purulia Zilla Parishad (for short PZP) as would be evident from the Memos dated 24th of March, 2010, 8th September, 2011 and 1st November, 2012, the petitioner, although eligible to receive the remuneration, has been illegally denied the same. 4. The petitioner carried his grievance before this Hon'ble Court by way of a writ petition being WP 15939 (W) of 2015 and by the order of 6th September, 2016, the Hon'ble Single Bench disposed of the writ petition by noticing, inter alia, that the petitioner has rendered service since 2008 and the non-payment of honorarium is co-extensive to his service tenure. The Hon'ble Bench therefore held the timeframe for deciding the claim to honorarium by the petitioner to be mandatory. 5. Ms. Chatterjee submits that the order of the BDO/the Respondent No.5 to the petition, being Order Nos. 2, 3 and 4 respectively dated 20th October, 2016, 17th November, 2016 and 21stDecember, 2016 are based on an incorrect appreciation of facts and the law. 5. Ms. Chatterjee submits that the order of the BDO/the Respondent No.5 to the petition, being Order Nos. 2, 3 and 4 respectively dated 20th October, 2016, 17th November, 2016 and 21stDecember, 2016 are based on an incorrect appreciation of facts and the law. The Respondent No. 5/ the BDO had concluded as follows:- "The Case Record is put up for final hearing and passing the order. The petitioner, Sri Ashwini Kumar turned up. Heard him again but he was unable to furnish (i) letter of approval from H & FW, Department, (ii) contract/agreement with the Pradhan, Majhidih Gram Panchayat in favour of his engagement. He only furnished a letter of appointment as Homoeopathic Compounder issued by the then Pradhan, Majhidih Gram Panchayat dated 02.06.2008 and the hoining report. Final Order: After careful consideration of all the relevant documents, enquiry reports, reports submitted by the Pradhan, Majhidih Gram Panchayat and on the basis of hearing upon all the interested parties, the following observation is made and is analytically depicted as follows:- (1) In pursuance of the memorandum issued vide no. HF/0/ISMH/372/3H-110/06 dated 31.05.2007 by the O.S.D. & E.O. Deputy Secretary, Health & Family Welfare Department (ISM & H Branch), Swasthaya Bhavan, GN-29, Sec-V, Salt Lake, Kolkata-91, the Department of Health & Family Welfare has decided not to engage any more part time Homoeopathic Compounder to those Gram Panchayat Homoeopathic Dispensaries where there are resultant vacancies due to death/ resignation/ in capacitance. The Purulia Zilla Parishad, Purulia did not issue any order/notice for engagement of Homoeopathic Compounder after 31.05.2007. Even no guidelines have been issued upon the Pradhans of any Gram Panchayat of any Gram Panchayat thereafter. (2) The resolution taken by the Pradhan, Majhidih Gram Panchayat for the engagement of Sri Prasenjit Mahato as Homoeopathic Doctor was correct in accordance with the notice and existing guidelines issued from Purulia Zilla Parishad, Purulia. (3) On the other hand, engagement of Sri Aswini Kumar, Homoeopathic Compounder on the same date as with that of Sri Prasenjit Mahato as Homoeopathic Doctor by the Pradhan, Majhidih Gram Pasnchayat is found to be in correct, arbitrary and not in accordance with the existing rules and guidelines of Health & Family Welfare Department, Govt. of West Bengal as mentioned in para (1) above. of West Bengal as mentioned in para (1) above. The Gram Panchayat Authority has taken this resolution on their own motion without judging the pros & cons of the existing rules and guidelines. It is a sorry state of affair that although the Pradhan, Majhidih Gram Panchayat had issued an order of engagement/ appointment to Sri Aswini Kumar as Homoeopathic Compounder but no contract/agreement has been made between them after obtaining prior approval from the competent authority. (4) After having verified the approved list of persons engaged as Homoeopathic Doctors as well as Homoeopathic Compounder- cum- Dresser in Purulia Zilla Parishad, Purulia, the name of Sri Aswini Kumar is not included as engaged Homoeopathic Compounder for releasing monthly remuneration. Hence, on the basis of available documentary records and evidence the undersigned is of the opinion that the claim of the petitioner as filed in his original representation dated 23.01.2015 for disbursement of his honorarium as Homoeopathic Compounder is not tenable and justified. Finally, thus the representation as submitted by the petitioner annexed to the W.P. No. 15939 (W) of 2015 in the matter of Aswini Kumar Vs. The State of West Bengal & Others is hereby disposed of and the order of judgement passed by His Hon'ble Lordship dated 06.09.2016 is complied with. D.A. to please handover a true copy of this order to the petitioner on receipt of an application within 7 (seven) days." 6. The State is represented by Mr. Majumder, Learned Government Pleader, who submits that the appointment of the writ petitioner was done in 2007 without following the selection Guidelines/Procedure. The post of H. Compounder has been since abolished. Accordingly, the petitioner cannot press his claim to an abolished post. 7. The Learned Government Pleader submits that the honorarium is only due and payable to individuals whose appointments are in accordance with law. Relying on the authorities of 2011 (3) SCC 436 and 2014 (15) SCC 50, Mr. Majumder submits that the Government is duty bound to advertise even temporary posts. Reliance is placed on the decision reported in 2012 (4) CHN (Cal) 341 to underscore the above point. It is submitted that the appointment of the petitioner being de hors the selection guidelines, disentitles him from receiving any honorarium. 8. Mr. Majumder clarifies that the relief, if any, which the petitioner claims is amenable only to a civil law remedy. 9. It is submitted that the appointment of the petitioner being de hors the selection guidelines, disentitles him from receiving any honorarium. 8. Mr. Majumder clarifies that the relief, if any, which the petitioner claims is amenable only to a civil law remedy. 9. Having heard the parties and considering the materials placed, this Court finds that the Orders of the Block Development Officer (BDO)-Jhalda II Gram Panchayat (GP)/the Respondent No. 5 makes mention of the fact that the petitioner was engaged as a H. Compounder on the 5th of July, 2007 with one Prosenjit Mahato, who was engaged as H. Doctor. It is relevant to note that both the H. Doctor and the H. Compounder were engaged vide resolution of the same date. 10. Therefore, it is surprising to state the least, that the BDO/Respondent No.5 found the appointment of the petitioner as the H. Compounder in the same dispensary to be arbitrary, irrational and injudicious but, did not apply the same logic to the simultaneous appointment of the H. Doctor. It is also surprising that the BDO/ Respondent No.5 relied upon the subsequent formalities by way of a contract/agreement entered into by and between the H. Doctor and the Gram Panchayat, whereas the Pradhan of the Gram Panchayat took no initiative to complete the formalities qua the H. Compounder, i.e. the petitioner notwithstanding the formal appointment of the latter. 11. With further regard to the above, the letter of appointment of 2nd June, 2008 issued by the then Pradhan of the GP issue in favour of the petitioner requires to be placed in full:- "Mr.Aswini kumar C/o. Lakshan Kumar Vill. & P.O. Majhidih P.S. Kotshilla, Dist. Purulia. Sub: Appointment of Homoeopathic Compounder Dear Aswini, As per resolution of the meeting of Majhidih Gram Panchayat dated 5/7/07 I am directed by the Committee to inform you that you have been selected as a Homoeopathic Compounder (H.C.) of the State Aided Homoeapathic Dispensary under Majhidih Gram Panchayat. You are requested to join within 10 (ten) days of the receipt of this letter and to report to the undersigned in one week of joining. Dated: 02/06/2008 Yours faithfully, Pradhan Majhidih Gram Panchayat Jhalda-II, Purulia" 12. This Court cannot also be oblivious to the firm joining letter of the writ petitioner dated 4th of June, 2008 and accepted by the Pradhan. Dated: 02/06/2008 Yours faithfully, Pradhan Majhidih Gram Panchayat Jhalda-II, Purulia" 12. This Court cannot also be oblivious to the firm joining letter of the writ petitioner dated 4th of June, 2008 and accepted by the Pradhan. Thereafter, by a Certificate dated 13th of June, 2013, i.e. five years after the petitioner joined, if was certified that the petitioner, a permanent resident of Majhidih Village, has been in regular and diligent service of the GP as H. Compounder. 13. It therefore stands to reason that the purported inability of the State Respondents to employ H. Compounders pursuant to the Memo dated 31st May, 2007 of the Health and Family Welfare Department, Government of West Bengal, as referred to by the BDO/Respondent No.5 in his order dated 21st December, 2016, related to ban on engagement of H. Compounders only in respect of Gram Panchayat dispensaries where vacancies have arisen due to death/resignation/incapacitation. 14. It further stands to reason that the ban created by the Memo dated 31st May, 2007 (supra) would not apply to the petitioner since his appointment was not contingent upon creation of a vacancy resulting from any of the three events, viz. death/resignation /incapacitation. In the above view of the matter read with the additional fact that three successive Pradhans of the Gram Panchayat in issue have not questioned the continuity of the engagement of the petitioner as H. Compounder, although expressing the vague view that they were not properly apprised of the mode of engagement of the petitioner, leads this Court to rely on the positive evidence submitted by the petitioner of his appointment and continuous work. 15. It also requires reiteration that on 6th September 2016 the Hon'ble Single Bench while directing the Respondent No.5/BDO to consider the case of the petitioner clearly held that the petitioner has been rendering service since 2008 and the non - payment of honorarium is co-extensive with his service tenure. Therefore, the Hon'ble Bench directed the Respondent No.5/BDO to treat the direction to consider the case of the petitioner as mandatory. 16. In the backdrop of the above discussion, this Court is of the view that the reasons ascribed by the BDO/Respondent No.5 to deny benefits to the petitioner are demonstrative of avoidance of legal obligations. Therefore, the Hon'ble Bench directed the Respondent No.5/BDO to treat the direction to consider the case of the petitioner as mandatory. 16. In the backdrop of the above discussion, this Court is of the view that the reasons ascribed by the BDO/Respondent No.5 to deny benefits to the petitioner are demonstrative of avoidance of legal obligations. This Court is of the further view that the Respondent No.5/BDO forgot to take notice of the fundamental fact that the petitioner also deserves to be paid the honorarium against the actual period of service rendered by him as H. Compounder. 17. Accordingly, the Order No.04 and Order No.05 impugned of the BDO/Respondent No.5 respectively dated the 17th of November, 2016 and 21st of December, 2016 stand quashed. 18. The BDO/Respondent No.5 is now directed to revisit the issue in the light of the observations made above in accordance with law. 19. W.P. No. 2114 (W) of 2017 stands accordingly allowed. 20. Urgent Xerox certified photocopies of this judgement, if applied for, be given to the parties upon compliance of the requisite formalities.