Calcutta High Court (Appellete Side)
Sirshendu Ghosh vs State Of West Bengal & Ors on 22 December, 2021
1
IN THE HIGH COURT AT CALCUTTA
CIVIL APPELLATE JURISDICTION
APPELLATE SIDE
PRESENT:
THE HON'BLE JUSTICE HARISH TANDON
&
THE HON'BLE JUSTICE RABINDRANATH SAMANTA
WP.ST 107 OF 2016
Sirshendu Ghosh
Vs.
State of West Bengal & Ors.
With
WP.ST. 210 of 2016
Dr. Anup Kumar Hazra & Ors.
Vs.
State of West Bengal & Ors.
With
WP.ST 29 of 2017
+
IA No: CAN 1 of 2019 ( Old No: CAN 1939 of 2019)
CAN 2 of 2020
Dipesh Dey
Vs.
State of West Bengal & Ors.
With
WP.ST 204 of 2016
Soudip Ghosh
Vs.
State of West Bengal & Ors.
_______
Mr. Bikash Ranjan Bhattacharyya,
Mr. Samim Ahammed,
Mr. Arka Maiti,
Ms. Saloni Bhattacharyya.
..... for the petitioners
in WP.ST 107 of 2016
WP.ST 210 of 2016
WP.ST 29 of 2017.
Mr. Tapan Kumar Mukherjee,
Mr. Rabindra Narayan Datta,
Mr. Somnath Naskar,
Mr. Raja Saha,
Mr. Sayan Ganguly.
.....for the State
in WP.ST 107 of 2016
2
Mr. Tapan Kumar Mukherjee,
Mr. Pronab Halder.
.....for the State
in WP.ST 210 of 2016
Mr. Tapan Kumar Mukherjee,
Mr. Anirban Ray,
Mr. Raja Saha,
Mr. Biswabrata Basu Mallick,
Mr. Sayan Ganguly,
Mr. Pranab Halder.
.....for the State
in WP.ST 29 of 2017.
Mr. Siddhartha Sankar Mandal.
.....for the petitioner
in WP.ST 204 of 2016
Mr. Tapan Kumar Mukherjee,
Mr. Pinaki Dhole,
Mr. Somnath Naskar.
.....for the State
In WP.ST 204 of 2016
Heard On : 25.11.2021
Judgment on : 22.12.2021
Rabindranath Samanta, J:-
1. These writ petitions raise a question as to whether the
petitioners who were appointed to act as Lecturers in
different Government Polytechnics on contract basis may
be regularized as against the sanctioned posts of
permanent feature.
2. The petitioner Sirshendu ghosh of WPST no. 107 of 2016,
the petitioners Anup Kumar Hazra, Santanu De, Azizul
3
Hossain Mallick, Arindam Biswas, Subhabrata Ghosh,
Safiul Alam Siddique of WPST no. 210 of 2016, the
petitioner Dipesh Dey of WPST no. 29 of 2017 and the
petitioner Soudip Ghosh of WPST no. 204 of 2016 filed
applications in the West Bengal Administrative Tribunal
seeking the orders which may be stated as under:-
i) A mandatory direction upon the
respondent authorities to regularize
the respective services of the respective
applicants retrospectively from a date
on which each of the applicants have
been entitled to regularization in terms
of the scheme of the Government vide
Government notification dated
11.01.2008 for regularization of their
respective services.
ii) The respondent authorities be directed
to pay each of the applicants all the
financial benefits attached to the post
of Lecturers to which the respective
lecturers would have been entitled to
had the respective applicants been
appointed on regular basis with effect
from a date on which each of the
applicants is entitled to regularization
in terms of the scheme of the
Government vide Government
notification dated 11/01/2008 together
with interest at the rate of 18% per on
all sum fallen due and payable to each
of the applicants on that score,
iii) The respective respondent authorities
be directed to consider formation of a
unified cadre of lecturers amongst all
the colleges under the Technical
Education and Training Department of
the Government of West Bengal.
3. The applications which were made by the petitioners
before the Tribunal were registered as O.A no. 1083 of
2012, O.A. no. 585 of 2013, O.A. no. 1222 of 2012 and
O.A. no. 1273 of 2012. By separate judgments passed in
the aforesaid applications the Learned Tribunal
dismissed all the applications.
4. Being aggrieved by and dissatisfied with the judgments
and orders passed by the Learned Tribunal the
petitioners have preferred the instant writ petitions.
5. The facts which are necessary for adjudication upon the
plea of the petitioners may be summarized as under:-
Admittedly, the petitioner Sirshendu Ghosh of WPST
no. 107 of 2016 was initially appointed on 01.08.2006 as
a Lecturer temporarily and on contract basis for six
months with a consolidated pay of Rs. 8,000/- per month
without any allowance. The petitioners Anup Kumar
Hazra, Santanu De, Azizul Hossain Mallick, Arindam
Biswas, Subhabrata Ghosh, Safiul Alam Siddique were
initially appointed as Lecturers in Polytechnics on
11.03.2003, 22.08.2005, 19.07.2006, 08.10.2003,
29.10.2003 and 18.01.2001 temporarily and on contract
basis for six months with a consolidated pay of Rs.
8,000/- per month without any allowance. The petitioner
Dipesh Dey of WPST no. 29 of 2017 was initially
appointed on 05.07.2005 temporarily and on contract
basis for six months with a consolidated sum of Rs.
8,000/- per month without any allowance. The petitioner
Soudip Ghosh of WPST no. 204 of 2016 was initially
appointed on 06.04.2001 temporarily and on contract
basis for six months with a consolidated sum of Rs.
8,000/- per month without any allowance. All the
petitioners were appointed till the posts were filled up by
regular candidates selected by the Public Service
Commission, West Bengal as per the existing rules.
6. It is not in dispute that the services of the petitioners
were extended from time to time, but on contract basis as
the posts held by them could not be filled up by the
Public Service Commission, West Bengal in accordance
with the rules. The petitioners excepting the petitioner
Soudip Ghosh who is no longer in service, are now
drawing a consolidated amount of Rs. 35,000/- per
month without any allowance.
7. The petitioners submit that the Department of Technical
Education and Training, Polytechnic Branch,
Government of West Bengal by virtue of a notification
dated 11.01.2008 regularized the services of nine
lecturers who were initially appointed on contract basis.
But, such benefit has not been extended to them and
thereby they have been discriminated in violation of the
fundamental right guaranteed under Article 14 of the
Constitution.
8. Learned Counsels appearing for the petitioners submit
that the petitioners are in continued service for more
than 10 years since their initial appointment and,
therefore, the services of the petitioners should be
regularized in view of the legal principle enunciated by
the Hon'ble Apex Court in the case of Secretary, State
of Karnataka and Ors. -Vs- Uma Devi(3) and Ors
reported in (2006) 4 SCC 1. That apart, in order to
buttress their submission Learned counsels appearing for
the petitioners have cited a catena of decisions which are
as follows:-
1. State of Karnataka - Vs- M.L Kesari and
Ors, (2010) 9 SCC 247.
2. Nihal Singh and Ors - Vs- State of Punjab
and Ors,(2013) 14 SCC 65.
3. Amarkant Rai -Vs- State of Bihar and Ors,
(2015) 8 SCC 265 and
4. Narendra Kumar Tiwari and Ors - Vs- Sate
of Jharkhand and Ors, ( 2018) 8 SCC 238.
9. Learned Counsels further submit that by notification
dated 11.01.2008 of the Department of Technical
Education & Training, Poly technic Branch of the
Government of West Bengal regularized the services of
nine lecturers who were appointed temporarily and on
contract basis like the petitioners. But, such benefit has
not been extended to the petitioners by the State and
thereby the State has treated the petitioners unequally.
On such score, this Court should direct the State to
extend the same benefit of the said notification to the
petitioners also.
10. Per contra, Mr. Tapan Kumar Mukherjee Learned
Lawyer appearing for the State submits that the services
of the petitioners who were appointed purely on contract
basis till filling up the posts by the Public Service
Commission, West Bengal in accordance with the existing
rules cannot be regularized in view of the judgment of the
Constitution Bench of the Hon'ble Apex Court in the case
of Secretary, State of Karnataka and Ors -Vs- Uma
Devi(3) and Ors reported in (2006) 4 SCC 1. In the light
of such decision the Government notification dated
11.01.2008 has no longer any legal force.
11. What we find, the Learned Tribunal by the judgments
impugned has negated the reliefs claimed by the
petitioners solely banking upon the decision in Uma Devi
(3) supra.
12. As stated above, the petitioners were initially
appointed as Lecturers of different Polytechnics for six
months purely on contract basis. Thereafter, their
services were extended from time to time, but the nature
of their service always remained contractual. We find that
the Public Service Commission, West Bengal undertook
exercise to fill up the posts held by the petitioners and
some of the petitioners participated in the examination
conducted by it. The Public Service Commission could
not fill up those posts because of an interim order dated
20.07.2017 passed by this Court whereby the State was
directed not to fill in seven posts in which the petitioners
are teaching today according to the categories to which
the petitioners belong.
13. As regards regularization of the services of the
employees appointed irregularly or on contract basis the
law declared by the Constitution Bench of the Hon'ble
Apex Court in the decision in the case of Secretary,
State of Karnataka and Ors - Vs- Uma Devi(3)and Ors
reported in (2006) 4 SCC 1 occupies the field as a torch
bearer. At paragraph 53 of the judgment the Hon'ble
Apex Court has held as under :-
"One aspect needs to be clarified. There may be
cases where irregular appointments ( not illegal
appointments) as explained in S.V. Narayanappa,
R.N. Nanjundappa and B.N. Nagarajan and
referred to in para 15 above, of duly qualified
persons in duly sanctioned vacant posts might
have been made and the employees have continued
to work for ten years or more byt without the
intervention of orders of the courts or of tribunals.
The question of regularisation of the services of
such employees may have to be considered on
merits in the light of the principles settled by this
Court in the cases above referred to and in the
light of this judgment. In that context, the Union
of India, the State governments and their
instrumentalities should take steps to regularise
as a one-time measure, the services of such
irregularly appointed, who have worked for ten
years or more in duly sanctioned posts but not
under cover of orders of the courts or of tribunals
and should further ensure that regular
recruitments are undertaken to fill those vacant
sanctioned posts that require to be filled up, in
cases where temporary employees or daily wagers
are being now employed. The process must be set
in motion within six months from this date. We
also clarify that regularisation, if any already
made, but not sub judice, need not be reopened
based on this judgment, but there should be no
further bypassing of the constitutional
requirement and regularising or making
permanent, those not duly appointed as per the
constitutional scheme."
14. Referring to the observations supra, the Hon'ble Apex
Court in a later decision in the case of State of
Karnataka and Ors -Vs- M.L Kesari and Ors reported
in (2010) 9 SCC 247 has clarified further that the
employees though appointed irregularly but rendered
continuous service for 10 years or more before the cut off
date on 10.04.2006 when the judgment in Uma Devi (3)
was rendered and the State government or its
instrumentality voluntarily accepted their services, their
services may be regularized provided they are found
eligible for the posts they hold. But, here all the
petitioners rendered services less than 10 years on the
cut off date on 10.04.2006. As pointed out above, the
services of the petitioners were or are to continue till the
posts held by them are filled up by Public Service
Commission in accordance with the existing rules. That
being so, the appointment of the petitioners cannot be
termed as regular appointment in accordance with rules
inforce.
15. In the case of Nihal Singh and Ors - Vs- State of
Punjab and Ors reported in (2013) 14 SCC 65 the
employees whose services were directed to be regularized
were appointed as per the service rules then existing in
Punjab, though their salary /wages were paid by different
banks where they served as special police officers.
Similarly, the facts in the case of Amarkant Rai -Vs-
State of Bihar and Ors reported in (2015) 8 SCC 265
and in the case of Narendra Kumar Tiwari and Ors -
Vs- State of Jharkhand and Ors reported in (2018) 8
SCC 238 are quite distinct from the facts on hand and
accordingly those are not applicable to the instant writ
petitions.
16. Having heard Learned Counsels appearing for the
parties and giving our anxious thought to the grievances
ventilated by the petitioners we are unable to extend the
benefit as sought for by the petitioners to them in view of
the law declared by the Hon'ble Apex Court in Uma Devi
(3) in this regard. Because of this mandate of the Hon'ble
Apex Court the aforesaid Government notification dated
11.01.2008 loses its legal force.
17. We have pondered over another angle of the matter
bearing in mind the legal principles expounded by the
Hon'ble Apex Court in the decision in the case of State
of Punjab and Ors - Vs- Jagjit Singh and Ors.
reported in (2017) 1 SCC 148. In this decision the
Hon'ble Supreme Court has held that the employees
appointed temporarily or on contract basis are entitled to
equal pay for equal work at par with those employees of
permanent posts who perform the same work. Here, the
posts held by the petitioners could not be filled up by the
Public Service Commission because of the aforesaid
interim order passed by this Court. Initially, the
petitioners would draw a consolidated sum of Rs. 8,000/-
per month, but their pay has been enhanced to Rs.
35,000/-per month. It is not contended on behalf of the
petitioners that their present consolidated pay of Rs.
35,000/- per month is not the minimum pay of the scale
of pay enjoyed by the regular lecturers of the sanctioned
posts. However, we find that the drawal of consolidated
sum of Rs. 35,000/- per month by the petitioners is the
minimum pay of the pay band of Rs. 15,600-39,100 with
AGP of Rs. 5,000 meant for the regular lecturers of
polytechnics. Under such circumstances, we are unable
to extend any benefit to the petitioners in the light of the
legal principles as above.
18. The Learned Tribunal, in its judgments has delved into
all the facets of the case and ultimately declined to grant
any relief to the petitioners in view of the decision in Uma
Devi (3) supra.
19. We find no reason to interfere with the decisions
arrived at by the Learned Tribunal.
20. The petitioner Soudip Ghosh of WPST no. 204 of 2016
is no longer in service and consequently the writ petition
brought by him being infructuous is liable to be
dismissed. The other writ petitions, in view of the
observations as above, do not succeed.
21. In view of the above, the question as raised is
answered in the negative and the writ petitions merit
dismissal.
22. Accordingly, the writ petitions being WPST no. 107 of
2016, WPST no. 29 of 2017, WPST no. 204 of 2016 and
WPST 210 of 2016 are dismissed.
23. All other connected applications are also dismissed. All
interim orders of stay stand vacated.
24. No order as to costs.
25. Urgent certified website copies of this judgment, if
applied for, be given to the parties upon compliance with
all requisite formalities.
(Rabindranath Samanta, J.)
I agree,
(Harish Tandon,J.)
