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2022 DIGILAW 730 (CAL)

Swapan Kumar Das. v. State Of West Bengal

2022-05-17

KRISHNA RAO

body2022
JUDGMENT Krishna Rao, J. - The challenge in the instant writ petition is the order passed by the Director of Local Bodies, West Bengal dt. 03.02.2009 wherein it is held that the engagement of the petitioner is completely illegal. 2. In the month of April 1989, the petitioner was engaged as Casual Employee in the Joynagar, Majilpur Municipality. 3. On 25th August, 1993, a settlement was arrived between the Workman Union and Management in presence of Conciliation Officer, Assistant Labour Commissioner, West Bengal wherein it was agreed between the parties that: '1) It is agreed by and between the parties that considering the increase of population and load of work additional employees will be in pay roll in addition to employee already inexistence i.e. total 120 employees. 2) It is agreed by and between the parties that all consolidated and Daily rated workmen will be paid minimum Govt. rate of wages from August, 1993 and their services will be confirmed and their services will not be terminated in any circumstances and they will be placed in the substantive vacancies in consultation with this Union.' 4. The Chairman, Joynagar, Mojilpur Municipality vide order dt. 01.02.1994 had issued the following order in favour of the petitioner:- 'ORDER Sri Swapan Kumar Das son of Sri Manik Mohan Das, who is working as a Casual Employee under this Municipality since 22-01-90 with ad-hoc pay is hereby confirmed as a Group - 'C' (Qualified) staff vide Tripartite Agreement dated 25-08-93 in presence of Labour Commissioner, with consolidated pay for Rs. 988/- (Rupees Nine hundred and eighty-eight) only per month and usual Terms and Conditions to perform the duties as will be allotted to him in any of the department including Health Department subject to absorption in the substantive post in future vacancy with admissible Scale of Pay and allowance. Sri Swapan Kumar Das was engaged as casual staff on no work no pay basis in the month of April, 1989. Chairman Joynagar-Mozilpur Municipality.' 5. Sri Swapan Kumar Das was engaged as casual staff on no work no pay basis in the month of April, 1989. Chairman Joynagar-Mozilpur Municipality.' 5. On 26th May, 1996 meeting of the Joynagar, Mojilpur Municipality was held and in the said meeting the following decision was taken:- 'Resolved unanimously that the Chairman be requested to issue necessary appointment order incorporating that the above persons shall be appointed on condition that they will abide by the normal municipal service rules and conduct rules and shall also abide by time to time orders of the municipality and other competent authorities, as the case may be.' 6. After the decision of the Meeting dt. 26th May, 1996 vide Order dt. 29.05.1996, the petitioner was appointed as Account's Clerk in the Establishment Section in the scale of pay of Rs. 1040-25-1215-30-1485-35- 1590-40-1670-50-1920 with the following conditions:- '1) The appointments are made for filling up of vacancies on temporary basis. 2) The concern persons will be on probation for one year with effect from the date of joining, when after the Municipality may consider to appoint them on regular basis subject to fulfillment of usual terms & conditions and subject to satisfactory performance during the period of probation. 3) They will join within seven days failing which the Municipality may cancel the appointment. 4) They will attend such duties as may be allotted by the Municipality from time to time. 5) They should follow the Municipal conduct rules and guide lines.' 7. Time to time, the Municipal Authorities have taken resolution for getting approval from the West Bengal Government for approval of the posts but the Govt. has not taken any decision and accordingly, the petitioner has filed a writ application before this Court being W.P. No. 21576 of 2016 and the said writ petition was disposed of on 0.01.2017 by passing the following order:- 'Accordingly, this Court directs the respondent no. 2 to take a decision whether the post facto approval can be granted or not and it goes without saying that the said respondent shall take into account all the relevant documents and papers forwarded to him by the municipality as well as the law applicable in this regard. The said respondent shall also record the reasons in the decision to be arrived within four weeks from the date of communication of this order.' 8. The said respondent shall also record the reasons in the decision to be arrived within four weeks from the date of communication of this order.' 8. In compliance of the order passed by the Coordinate Bench of this Court, the Director of Local Bodies passed the impugned order. 9. Mr. Atarup Banerjee, Ld. Advocate representing the petitioner submits that the petitioner is continuously working in the Joynagar, Mojilpur Municipality since the year 1989 and as per the settlement arrived between the Union and the Management it was agreed that service of the petitioner will be confirmed and accordingly, initially in the year 1994 ad-hoc pay of the petitioner was confirmed and in the year 1996 the petitioner was appointed as Account's Clerk with the scale of pay. 10. Ld. Counsel for the petitioner further submits that due to non approval of the Government, the service of the petitioner was not confirmed due to which the petitioner is not getting pensionary benefits. 11. Ld. Counsel further submits that vide order dt. 04.01.2017, this Court had directed the respondents to take decision whether post facto approval can granted or not by taking into account of all the relevant documents but the respondents without considering the documents of the petitioner only on the basis of the Judgment passed in the case of Rabindra Nath Ghosh - versus- State of West Bengal had rejected the request of the petitioner. 12. Ld. Counsel for the petitioner further submits that the petitioner was getting regular salary but due to non approval by the Government of West Bengal, the petitioner is not getting pension as the petitioner retired on 20.01.2018. 13. Ld. Counsel for the petitioner further submits that the Govt. has granted post facto approval to the appointment of one Sri Shymal Bhattacharya to the post of Tax Collector on promotion but the case of the petitioner is rejected. 14. Mr. Susanta Pal, Ld. Advocate representing the State submits that the Municipal Authority cannot engage casual worker in a sanctioned vacant post without taking prior permission from the Government. 15. Ld. Counsel further submits that Chief Secretary of West Bengal issued Circular dt. 2nd December, 2009 directing not to give any effect of the orders of the Labour Department dt. 13.03.1996, 28.08.1980 and 03.08.1979 wherein regularization of casual workers in the sanctioned posts were made. 16. Ld. 15. Ld. Counsel further submits that Chief Secretary of West Bengal issued Circular dt. 2nd December, 2009 directing not to give any effect of the orders of the Labour Department dt. 13.03.1996, 28.08.1980 and 03.08.1979 wherein regularization of casual workers in the sanctioned posts were made. 16. Ld. Counsel for the respondents relied upon the Judgment reported in (2010) 1 CAL LT 187 (HC) (Rabindra Nath Ghosh & Ors. -Versus- The State of West Bengal & Ors.) and the Judgment reported in Civil Appeal No. 1951 of 2022 (The State of Gujarat & Ors. -Vs- R.J. Pathan & Ors.) and submits that no such order of absorption, regularization and for creating supernumerary post can be passed by High Court in exercise of powers under Article 226 of the Constitution of India. 17. Heard, the Ld. Counsel for the parties, consider the documents available on record and the Judgment relied by the respondents. 18. On the basis of tripartite agreement dt. 25.08.1993 entered between Union, Management and Conciliation Officer and Assistant Labour Commissioner, West Bengal, the petitioner was working as Casual Employee under the Municipality since 22.01.1990 was confirmed as Group- 'C' (qualified) staff with consolidated pay of Rs. 488/- per month subject to absorption in the substantive post in future vacancy with admissible scale of pay and allowance. 19. In terms of Resolution dt. 25.05.1996, the petitioner was appointed as Account's Clerk in the scale of pay of Rs. 1040-25-1215-30-1485-35-1590- 40-1670-50-1920. 20. The Municipal Authorities time and again requested the respondent nos. 1 and 2 for grant of approval for confirmation of service of the petitioner but no decision was taken. 21. The Coordinate Bench of this Court vide Order dt. 04.01.2017 directed the respondent no. 2 to take decision whether post facto approval can be granted or not by considering the documents and papers forwarded by Municipalities. 22. The respondent no. 2 has passed the impugned order relying upon the Judgment passed in W.P.S.T No. 403 of 2009 and with the following reasons:- 'As Sri Swapan Kumar Das, the petitioner is a casual worker he cannot be absorbed in permanent post at present as per the order of the Hon'ble Division Bench dated 24.8.2009. More over it has been found that the casual workers were engaged by the ULBs completely on pick and choose basis. The ULBs were not entitled to engage casual workers. More over it has been found that the casual workers were engaged by the ULBs completely on pick and choose basis. The ULBs were not entitled to engage casual workers. Before making engagement the Chairman, Joynagar Majilpur Municipality did not issue any notice and also did not follow other rules including rule of reservation of SC/ST/OBC categories and regulations related to recruitment. No transparency has been maintained. The engagement of Swapan Kumar Das is completely illegal. Post facto approval in respect of Swapan Kumar Das cannot be given due to above mentioned reasons and also due to the fact that it will set illegal example. Other casual workers of various ULBs will also demand the same and it will huge financial liability on the Government. As the ULB is bound to obey the order of the Chief Secretary, Govt. of West Bengal and as the circular of the Chief Secretary is still existing, the undersigned cannot give post facto approval to the petitioner due to above mentioned reasons. This decision has been taken after consulting all the Govt. orders, circulars and the papers submitted by the Chairman, Joynagar, Majilpur Municipality.' 23. The respondent no. 2 while passing the impugned order did not considered the documents under which circumstances, the petitioner was appointed as Account's Clerk. 24. The Municipality entered into tripartite agreement in presence of Conciliation Officer, Assistant Labour Commissioner, Government of West Bengal and after the order of appointment the Municipal Authority had time and again by way of resolution requested the Government for grant of approval but the Government has neither cancel the order of appointment of the petitioner nor approval was granted. 25. It reveals from record, the petitioner has retired from service but due to non-grant of post facto approval, the petitioner is not getting family pension. It also reveals from record that since 1996 till the date of retirement, the petitioner was getting his regular scale of pay with all benefits. 26. Vide letter dt. 22.02.2002, the Municipal Authority had sent a request for approval of staffs wherein it is categorically mentioned that: 'To consider this office memo no. It also reveals from record that since 1996 till the date of retirement, the petitioner was getting his regular scale of pay with all benefits. 26. Vide letter dt. 22.02.2002, the Municipal Authority had sent a request for approval of staffs wherein it is categorically mentioned that: 'To consider this office memo no. XI-(5)/Estb./78, dated - 24.07.2001 requesting to the Director of Local Bodies, Purta Bhavan, Salt Lake City, Kolkata - 700 091 for approving the service of the following 49 employees, who have been appointed against the permanent sanctioned posts and whose service books and pay fixation have been checked and certified by the office of the Director of Local Bodies.' 27. Out of the 49 employees, the name of the petitioner is appearing at Sl. No. 5. 28. The appointment of the petitioner is an irregular appointment and not an illegal appointment. The petitioner was engaged initially in the year 1989 and in the year 1996, the petitioner was appointed as Account's Clerk in a specific scale of pay and till his retirement i.e. till 20.01.2018 without any order of Court. The Government of West Bengal has not granted approval and due to which the petitioner is not getting pension. 29. In view of the above, the impugned order dt. 06.02.2017 issued by the Director of Local Bodies, West Bengal is set aside. The respondent no. 2 is directed to consider the case of the petitioner and to grant post facto approval within four weeks from the date of communication of the order. 30. WPA No. 6695 of 2017 is disposed of. 31. Parties shall be entitled to act on the basis of a server copy of the Judgment and Order placed on the official website of the Court. 32. Urgent Xerox certified photocopies of this judgment, if applied for, be given to the parties upon compliance of the requisite formalities. (Krishna Rao, J.) Later, The Counsel for the State prays for stay of the operation of the order. The Counsel for the petitioner opposes the prayer made by the Counsel for the State. Considered the submissions made by the parties. Prayer for stay is refused.