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2022 DIGILAW 1624 (CAL)

State Of West Bengal v. Lipi Banerjee

2022-12-23

HIRANMAY BHATTACHARYYA, T.S.SIVAGNANAM

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JUDGMENT T.S.Sivagnanam, J. - These appeals are directed against the order dated 16.08.2017 passed in WP No. 11925 (W) of 2004. The said writ petition was filed by the first respondent herein Mrs. Lipi Banerjee. The appellants in MAT No. 1803 of 2017 are the State of West Bengal through Secretary, Department of Higher Education and the Director of Public Instructions, Education Department, Government of West Bengal. They were arrayed as respondents 1 and 2 in the writ petition. MAT No. 1756 of 2017 has been filed by the Management of New Alipore College, in which the writ petitioner is working. Since the appeals are directed against the same order passed in the writ petition, they were heard together and they are disposed of by this common judgment. 2. The writ petition was filed for issuance of a writ of mandamus to direct the appellants particularly the college authorities to approve the appointment of the writ petitioner with effect from the date of her joining i.e. 29.04.1997, considering the facts that she was appointed in a clear vacant post created under Go No. 1028-EDN(CS) dated 10.12.1996 in a vacancy which arose on account of the promotion of one Timir Guha. The learned Single Bench by the impugned order has allowed the writ petition and also imposed cost of Rs. 50,000/- payable by the management of the New Alipore College who shall be herein after referred to as the management. 3. We have heard Mr. Samrat Sen, learned senior advocate assisted by Mr. Subhabrata Das, for the appellants in MAT No. 1803 of 2017, Mr. Kishore Dutta learned senior advocate assisted by Mr. Santanu Kumar Mitra, and Mr. Amartya Pal for the appellants in MAT No. 1756 of 2017, Mr. Subir Sanyal, assisted by Mr. Joydeep Acharya and Mr. Chandrachur Chatterjee for the respondent/writ petitioner, Mr. Jaharlal De and Mr. Shamim ul Bari for the State in MAT No. 1756 of 2017, Mr. Amitava Chaudhuri and Mr. N. Ray appearing for the Director of Public Instructions. 4. The writ petitioner had completed her bachelor degree in Philosophy during the year 1988 and acquired post graduate qualification in the year 1990, she also possesses a diploma in systems management, has working knowledge, as typist and has worked in various other establishments, before she applied for the post of clerk in the appellant management. 4. The writ petitioner had completed her bachelor degree in Philosophy during the year 1988 and acquired post graduate qualification in the year 1990, she also possesses a diploma in systems management, has working knowledge, as typist and has worked in various other establishments, before she applied for the post of clerk in the appellant management. The appellant management inserted an advertisement in the 'Statesmen' dated 10.04.1997 inviting applications for clerical post in cadre 'C' and in response to such application, the writ petitioner applied for the post of clerk by the application dated 11.04.1997 mentioning her qualifications and other credentials. The application was considered and the writ petitioner was directed to appear before the Selection Committee on 27.04.1997. After undergoing a process of recruitment by order dated 28.04.1997, the management appointed the writ petitioner as clerk in the day shift. The appointment order states that it is subject to the approval by the Director of Public Instructions and that she has been appointed with effect from 28.04.1997 as a clerk in the day shift by the governing body of the management against the post sanctioned by Go No. 1028-EDU (CS) dated 10.12.1996 on a basic pay of Rs. 1040 in the scale of pay Rs. 1040-1960 and she will be entitled to get other benefits in the scale as and when it is sanctioned by the Government after approval by the Director of Public Instructions (DPI).The writ petitioner was requested to join the post by 30.04.1997 positively otherwise the letter of appointment will be treated as cancelled. Further the appointment order stated that the authority will transfer her to any other department, if required. In terms of the appointment letter, the writ petitioner joined the post and submitted her joining report dated 29.04.1997. Since the appointment had to be approved by DPI, the management by communication dated 24.06.1997 forwarded the relevant papers to the DPI for approval of the appointment. In terms of the appointment letter, the writ petitioner joined the post and submitted her joining report dated 29.04.1997. Since the appointment had to be approved by DPI, the management by communication dated 24.06.1997 forwarded the relevant papers to the DPI for approval of the appointment. Along with the said communication dated 24.06.1997, a copy of the governing body resolution, decision regarding formation of selection sub-committee; a copy of the Go No. 1028 EDU(CS) dated 10.12.1996 by which the post was created; letter to the employment exchange/advertisement from the college; list of sponsored candidates by the employment exchange; list of candidates who attended the selection process before the Selection Committee with their signatures; appointment letters; joining report; biodata of the candidate; date of birth as per certificate and SC/ST/OBC Certificate wherever applicable. Perusal of the minutes of the meeting of the governing body held on 28.04.1997 shows that the writ petitioner was appointed in the vacant post of clerk which arose consequent upon the promotion of Shri Timir Guha Roy as head clerk of day shift with effect from 30.04.1997 on a monthly basic pay of Rs. 1040 plus usual admissible allowance in the scale of pay of Rs. 1040-25-1215-30-1485-35-1590-40-1670-50-1920 vide Go No. 3063-EDN(CS) dated 07.12.1973. Along with the writ petitioner several other non- teaching staff were also appointed whose credentials were also forwarded to the DPI for approval. To be noted that among those non-teaching staff who also applied along with the writ petitioner in response to the advertisement issued by the management, their appointments have been approved and the names of some of those non-teaching staff are Shri Sukhen Das, Shri Mantosh Majumder, Shri Ranjit Dey and Uttam Maity. 5. It appears that there was delay in considering the approval of the writ petitioner's appointment as well as the appointment of other non-teaching staff for nearly two years which prompted the writ petitioner and others to submit a representation dated 10.01.1999 to the DPI, pointing out that pursuant to the decision taken by the governing body dated 28.04.1997 and after completing all formalities including interview by the Selection Committee all of them were duly appointed in the respective post and they also reliably understand that the management has forwarded their papers to the DPI for approval. Further it was stated that all of them have been continuously and uninterruptedly serving the institutions with utmost sincerity and it is a matter of great concern that they have not yet received the approval orders consequently, they are denied the benefits payable to the full time staff. Therefore, request was made to the DPI to accord approval of their appointments at an early date. There were 15 signatories to the representation and the writ petitioner was one among them. With regard to the number of posts which was sanctioned, it appears that the governing body of the management felt a need for sanction of additional posts and a decision was taken in the meeting of the governing body held on 28.04.1997 in which one of the agenda was regarding creation of post in various categories of non-teaching staff. This resolution is of relevance because it shows the number of posts which were sanctioned and the additional staff which was being requisitioned from the Government. In the day shift, the number of posts of clerk sanctioned were two and one additional post was sought for by the management. This fact would be of relevance at a later stage when we go into the other aspects. The DPI by communication dated 16.02.1999, apropos the request of the management for approval of the non-teaching staff stated that the management has not observed the recruitment rules as per the Government orders and irregularities have occurred at the time of appointment of non-teaching posts created in Go No. 1028-EDN(CS) dated 10.12.1996. The list of non-teaching posts which were to be filled up were also mentioned in the said communication. It was further stated that the management authorities appointed excess staff and they had appointed only one person through the employment exchange in violation of the Government order dated 31.10.1995. Further age proof certificate and certificate of qualifications has not been submitted, the governing body resolution regarding adjustments of excess post has not been submitted, the governing body resolution regarding condonation of over-age of approved class 4 employees who have been appointed in grade C post has not been submitted and reservation quota has not been sanctioned. From the communication sent by DPI dated 16.02.1999, it is seen that the approval sought for by the management in respect of non-teaching staff who were appointed has not been rejected. From the communication sent by DPI dated 16.02.1999, it is seen that the approval sought for by the management in respect of non-teaching staff who were appointed has not been rejected. The DPI has pointed out certain irregularities and deficiencies alleged to have been committed by the management in the matter of appointment of non-teaching staff. Therefore, the appellants are under a mis-conception that the approval sought for has been rejected by DPI which is not the case as could be seen from the communication of DPI dated 16.02.1999. Thus, what was incumbent upon the management is to respond to the communication by justifying their selection process and pointing out as to how they have not violated any of the Government orders etc. Furthermore, it would have been well open to the management to contend that it is not mandatory to draw candidates only from the employment exchange as it has been held in several decisions that the pool of candidates available with the employment exchange is one of the sources which should be explored while selecting the candidates to public employment. Unfortunately, the appellant college failed to proceed in such a direction. But surprisingly took another decision in its governing body meeting held on 28.08.1999. The procedure adopted by the appellant management is wholly illegal. The order of appointment issued to the petitioner continued to remain valid and the petitioner was working. The appellant management was duty bound to stand by their decision in appointing the writ petitioner who was found fit by the Selection Committee which decision was approved by the governing body in its meeting held on 28.04.1997. Unfortunately, the governing body took a fresh decision on 28.08.1999 and resolved to appoint one Motilal Barik in the post of clerk day shift in the vacancy caused on account of the promotion of Shri Timir Guha Roy instead of library clerk-evening with effect from 30.04.1997. There is nothing to indicate that the governing body which took such a decision on 28.08.1999 had superseded its earlier decision taken on 28.04.1997 by which the writ petitioner and others were appointed. In any event, the writ petitioner was not issued any notice by the management about such a decision. There is nothing to indicate that the governing body which took such a decision on 28.08.1999 had superseded its earlier decision taken on 28.04.1997 by which the writ petitioner and others were appointed. In any event, the writ petitioner was not issued any notice by the management about such a decision. What is more shocking is that the Shri Motilal Barik was grossly over-age and the management resolved to condone the over-aged of 15 years 6 months and 29 days in respect of the said candidate and such decision was communicated to the DPI vide letter dated 06.09.1999. Even thereafter, the writ petitioner continued to work with the management and it is stated that the management was paying her salary which was on consolidated basis much below the scale of pay payable for the said post held by the writ petitioner. Since there was continuous stale mate in the matter and there was a threat of the writ petitioner being removed from the employment, and having left with no other option had approached this court and filed the writ petition. 6. By order dated 22.11.2004, an interim order was granted directing that the writ petitioner services should not be disturbed. Thereafter, the appellants had filed their affidavit-in-opposition and the writ petition was finally heard and allowed by the impugned order dated 16.08.2017. 7. The appellants State seeks to resist the approval of the appointment of the writ petitioner by contending that there was no post available in which the writ petitioner could have been accommodated. The learned Additional Advocate General had made elaborate submissions in this regard and has drawn our attention to various documents. After having considered the submissions and perused the documents, we find that the stand taken by the appellant state is wholly unjustified. Admittedly on the date when the writ petitioner was appointed there was a clear vacant post caused on account of promotion of an existing candidate who was holding the post of clerk. If that be so, the question of raising a plea that there was no post available to which the writ petitioner could be appointed is a plea that has to be outrightly rejected. The appellant state seeks to contend that the Government had issued orders for conversion of the post and thereafter by reserving the post for a schedule tribe candidate. The appellant state seeks to contend that the Government had issued orders for conversion of the post and thereafter by reserving the post for a schedule tribe candidate. This conversion was done by the management at the first instance and it is clear that it is a sinister move on the part of the management to do so and in all probabilities with a view to render the challenge made by the writ petitioner as infructuous. In any event such conversion which took place much after the appointment of the writ petitioner could have no impact on her appointment. As already pointed out the management could not have taken a fresh decision to appoint Shri Motilal Barik, since the appointment of the writ petitioner had been forwarded to the DPI for approval and DPI had not rejected the approval as could be seen from the communication dated 16.02.1999. Thus, if the management was a genuine employer, they should have sustained their decision taken in the governing body in the meeting held on 28.04.1997. But for reasons best known to the appellant management, they chose to prefer Shri Motilal Barik who was grossly over-aged by more than 15 years which was condoned by the management. It is not clear as to how the DPI could have accepted such condonation especially when in the communication dated 16.09.1999 the condonation of overaged was one of the issued pointed out by DPI. The condonation of over age of Motilal Barik is also a sinister move on the part of the management to somehow deprive the writ petitioner of her legitimate and legal rights. The appellant/DPI further would contend that there was restructuring of the number of posts sanctioned and consequently the appointment of the writ petitioner is to be treated as an appointment to a post which has not been sanctioned. This stand cannot be taken by the DPI or by State, as on the date of appointment of writ petitioner i.e. on 28.04.1997 there was a clear sanctioned vacancy in terms of Go No. 1028 EDU(CS) dated 10.12.1996. Any subsequent restructuring of the post by reduction of post or merger of post cannot take away the right which accrued to the writ petitioner pursuant to the post which was available on the date of her appointment i.e. 28.04.1997. 8. Any subsequent restructuring of the post by reduction of post or merger of post cannot take away the right which accrued to the writ petitioner pursuant to the post which was available on the date of her appointment i.e. 28.04.1997. 8. One more interesting fact which was pointed out by the learned advocate appearing for the writ petitioner is that the management themselves has reconciled to the fact that the communication dated 16.02.1999 from the DPI is not a rejection of the approval of the writ petitioner and others. This is so because in the meeting of the governing body held on 12.06.1999, it was resolved that all relevant papers sent earlier to the DPI should be once again sent which includes the papers relating to the writ petitioner Lipi Banerjee. When such is the factual position, the management chose to make a summer sault by resolving to appoint Mr. Motilal Barik in the post which on the date when he was appointed was not vacant as the writ petitioner had already been accommodated in the said vacancy. Thus, it is evident that the management has left no stone unturned only to harass the writ petitioner and to somehow negative her claim. This attempt by the management continued even after the writ petition was filed by converting the post and reserving the same for scheduled tribe candidates. One more aspect which needs to be pointed out to show the arbitrariness on the part of the DPI is that though several non-teaching staff were appointed along with the writ petitioners pursuant to the decision of the governing body dated 28.04.1997 except the writ petitioner, the other appointment have been approved. In the earlier part of the order by way of illustration the names of the four of such candidates whose appointment were approved by DPI have been mentioned. Therefore, it is clear that DPI has been inconsistent, selective and discriminatory for reasons best known. It is not in dispute that those candidates who were appointed along with the writ petitioners continue to function and their appointment were approved as early as in the year 1999. 9. Thus, it is clear that the writ petitioner has been dealt with in a most arbitrary and unfair manner not only by the management but by the DPI as well. 9. Thus, it is clear that the writ petitioner has been dealt with in a most arbitrary and unfair manner not only by the management but by the DPI as well. The learned Single Bench was fully justified in observing that under the pretext of the communication of the DPI dated 16.02.1999, the management relied on a second purported resolution of the governing body dated 28.08.1999,to steer the way for appointment of the private respondent Motilal Barik (since retired) to the post of clerk vis Timir Guha Roy. Further the learned Single Bench rightly observed that without giving reasons for sub-planting the governing body resolution dated 28.04.1997 and the recruitment process under taken on the platform of Go No. 1028 dated 10.12.1996, the management placed a second proposal for approval of post omitting the name of the writ petitioner. Further the observations of the learned Writ Court that the second proposal was brazenly unfair to the right of the writ petitioner to be approved is well justified. As rightly noted by the learned Single Bench atleast after the retirement of Motilal Barik, the management could have mend its ways by giving necessary relief to the writ petitioner but chose not to do so and instead converted the post to be reserved for scheduled tribes and initiating fresh recruitment process to the said post. 10. Thus, the factual situation clearly shows that the action of the management was wholly arbitrary and unsustainable and the decision taken by DPI was without application of mind and the learned Single Bench was fully justified in allowing the writ petition and the appellants have not made out any case for interference with the said order. With regard to the cost which had been imposed, since it is directed to be paid by the management, if confirmed, would result in further harassment of the writ petitioner. Therefore, we are inclined to interfere with that portion of the order passed in the writ petition and accordingly the cost imposed on the management stands deleted. 11. With regard to the cost which had been imposed, since it is directed to be paid by the management, if confirmed, would result in further harassment of the writ petitioner. Therefore, we are inclined to interfere with that portion of the order passed in the writ petition and accordingly the cost imposed on the management stands deleted. 11. In the result, the appeals are dismissed and the order passed in the writ petition is affirmed with direction to the appellants to approve the appointment of the writ petitioner with effect from the date of her appointment i.e. 28.04.1997 sanction all pay and allowance and consequential monetary and other benefits accruable on such approval within the period of two months from the date of the receipt of the server copy of this judgment. No costs.