Sri Dumur Nayak @ Dumru Nayak vs The State Of West Bengal & Ors
2022 Latest Caselaw 1718 Cal

                                       W.P.A. 3794 of 2018
09    01.04.2022
rkd   Ct.15
                             Sri Dumur Nayak @ Dumru Nayak
                                          -vs-
                             The State of West Bengal & Ors.

                   Mr. Sankar Biswas
                                                              ....for the petitioner.
                   Mr. Basudeb Gayen
                                                 ....for the Baidyabati Municipality.
                   Mr. Jahar Lal De,
                   Mr. Shamim-UL-Bari
                                                                    ....for the State.

                            Petitioner     has     prayed     for    post     facto

                   approval of appointment in view of the Government

                   Order dated 28th June, 2004 issued in the name of

                   the Governor on behalf of the Department of

                   Municipal Affairs, Government of West Bengal

                   which relates to granting deemed approval in

                   favour    of   the      employees        working      in    the

                   municipalities in the State. It has been contended

                   on behalf of the petitioner that he was first

                   appointed with effect from 17th December, 1990 as

                   Sweeper in Baidyabati Municipality (hereinafter

                   referred to as the "said municipality") on temporary

                   basis and subsequently he preferred a writ petition

                   being C.O. 9662(W) of 1991 for his absorption in

                   permanent vacancy and the same was disposed of

                   by a coordinate Bench on 26th September, 1996

                   whereby leave was granted to the said municipality

                   to absorb the petitioner in the permanent post
                             2




forthwith.

       Pursuant to such order of the coordinate

Bench dated 26th September, 1996 vide Office

Order dated 13th January 1997 the Chairman of

the said municipality appointed the petitioner in

the post of Sweeper with effect from 1st January,

1997   subject   to   the       approval   of   the   State

Government. Based on such appointment letter

dated 13th January, 1997 petitioner was placed

against the regular scale of pay which is applicable

to the approved staff of the said municipality but

the periodical increment of the petitioner based on

some audit observation was stopped with effect

from 1st July, 2010. It is the case of the petitioner

that till date he is working as Sweeper of the said

municipality therefore he is entitled to get the

direction for post facto approval which was not

granted in his favour which prompted him to file

the second writ petition being W.P. 12215(W) of

2017 which was disposed of vide order dated 13th

November, 2017 by another coordinate Bench

directing the Director of Local Bodies, Government

of West Bengal, being the respondent no.2 to take

decision on grant of approval of the petitioner.

Pursuant to such direction dated 13th November,

2017 passed by the coordinate Bench the Director
                              3




of Local Bodies passed order dated 29th December,

2017 thereby rejecting the prayer of the petitioner

for sanction of post facto approval which is under

challenge in the present writ petition.

         Mr. Biswas, learned advocate appears on

behalf of the petitioner and submits that the

Chairman of the said municipality vide Letter dated

20th November, 2017 requested the respondent

no.2 for approval of appointment of some of the

staff of the said municipality enclosing the list of

such staff wherefrom it appears that the name of

the petitioner is appearing at serial no.17. In

response to such approach being made by the said

municipality respondent no.2 clarified the position

vide Memo dated 23rd August, 2018 based on

Government Order dated 28th June, 2004, this

Court finds it apposite to quote such Memo dated

28th June, 2004 below:

                  "Government of West Bengal
                 Department of Municipal Affairs
                       Writers' Buildings
                       Kolkata -700001

                             ORDER

No. 300/MA/O/C-4/1A-7/2000 dated, Kolkata the 28th June, 2004

WHEREAS it appears that a considerable no of appointments/promotions were made in a number of Urban Local Bodies against sanctioned vacancies holding erstwhile scale of Rs. 380-910/- and below during the period from 1.1.1986 to 13.07.1994

without obtaining prior approval of the Government and ;

WHEREAS in absence of approval of the Government the Urban Local Bodies are facing difficulties relating to the finalisation of pension cases of the retired employees;

NOW THEREFORE, the Government, after due consideration, is pleased to decide that the approval of the Government for such appointments/promotions for the aforesaid period, made against the vacancies in sanctioned posts of the concerned Urban Local Bodies, shall be deemed to have been accorded.

By order of the Governor, Sd/- D.K. Datta Joint Secretary to the Government of West Bengal

No. 300/1(65)/MA/O/C-4/1A-7/2000 dated, Kolkata the 28th June, 2004"

It has been contended on behalf of the

petitioner that on offering clarification by the

respondent no.2 as contained in Memo dated 23rd

August, 2018 appointment of the petitioner is

deemed to be approved and no further formal

approval is required. In this regard, petitioner has

also relied upon Government Order dated 28th

June, 2004 issued by the Department of Municipal

Affairs, Government of West Bengal.

In addition thereto, Mr. Biswas has also

placed reliance on one unreported judgment of the

Hon'ble Division Bench dated 19th March, 2021

passed on MAT 65 of 2021 (The Baidyabati

Municipality & Ors. -vs- Swapan Chatterjee & Anr.)

wherein the Hon'ble Division Bench upon placing

reliance on the said Government Order dated 28th

June, 2004 and the Memo dated 23rd August, 2018

issued by the respondent no.2 directed the

concerned respondent authorities to sanction

pension in favour of writ petitioner/respondent

no.1 upon treating the said respondent no.1 as an

approved staff of the said municipality.

It is further contended on behalf of the

petitioner upon placing reliance on the judgment of

the Hon'ble Division Bench, reported in (2010) 1

CAL LT 187 (HC) (Rabindra Nath Ghosh & Ors. -vs-

The State of West Bengal & Ors.), the ratio of such

decision does not apply in the case of the petitioner

as it appears from paragraphs 3 and 13 of the said

judgment which are confined to regularisation

Circulars of the Labour Department and such

Circulars have no manner of applications in case of

sanction of post facto approval in favour of the staff

working in the municipality.

Per contra, Mr. De, learned advocate

representing the State respondents has defended

the decision of the respondent no.2 as contained in

impugned reasoned order dated 29th December,

2017. According to the State respondents the

petitioner was not appointed on substantive basis

in the year 1990 rather his appointment was on

daily wage basis and subsequently the appointment

made by the said municipality in favour of the

petitioner was not against the sanctioned post

therefore it is submitted that considering the

nature of appointment of the petitioner he has no

right to get the benefit of post facto approval in the

post of Sweeper in the said municipality. On

application of Government Order dated 28th June,

2004 it has been submitted by Mr. De that such

Government order does not apply in the case of the

petitioner since the said order is confined to those

staff of the municipality who were appointed in

between 1st January, 1986 to 13th July, 1994 that

too in respect of the scale of pay of Rs.380-910/-

and below which was sanctioned in favour of the

staff who were appointed within the said period.

Mr. Gayen, learned advocate appears on

behalf of the Baidyabati Municipality and has

submitted that case of the petitioner for approval

was forwarded vide letter dated 20th November,

2017 to the respondent no.2 and the same was

clarified by the respondent no.2 vide Memo dated

23rd August, 2018 that no approval is required in

view of Government Order dated 28th June, 2004.

However, in the same breath he has further

submitted that till date no such approval has been

accorded by the respondent no.2 in respect of the

service of the petitioner.

This Court has heard the learned advocates

appearing for the parties and perused the relevant

documents available on record.

On perusal of the impugned order dated

29th December, 2017 passed by the respondent

no.2, it appears that one of the grounds for

rejecting the case of the petitioner was decision of

the Hon'ble Division Bench passed on Rabindra

Nath Ghosh (supra) wherein three Circulars of the

Labour Department were declared ultra vires. But

this Court fails to comprehend as to why such

decision of the Hon'ble Division Bench in Rabindra

Nath Ghosh (supra) is applicable in present case

where issue relates to sanction of post facto

approval in favour of the writ petitioner who

happens to be a staff of the said municipality and

whose case can be considered in terms of the

Government Order dated 28th June, 2004. Such

Government Order dated 28th June, 2004 of the

Department of Municipal Affairs, Government of

West Bengal was not considered by the Hon'ble

Division Bench in Rabindra Nath Ghosh (supra)

therefore the decision of Rabindra Nath Ghosh

(supra) has no manner of application in the present

case.

This Court has also considered the

unreported judgment of the Hon'ble Division Bench

dated 19th March, 2021 passed in Baidyabati

Municipality (supra) wherein the Hon'ble Division

Bench upon placing reliance on the Government

Order dated 28th June, 2004 and the letter of the

respondent no.2 dated 23rd August, 2018 directed

the concerned respondent authorities to process

the pension case of one of the employees of the said

municipality who was respondent no.1 in the

appeal being MAT 65 of 2021 upon granting

necessary approval on his appointment.

In consideration of the facts narrated by the

Hon'ble Division Bench in Baidyabati Municipality

(supra), it appears that the petitioner is to some

extent similarly circumstanced like Swapan

Chatterjee since both the petitioner and said

Swapan Chatterjee were recommended by the

Chairman of the said municipality for approval vide

letter dated 20th November, 2017. In the list

appended to said letter dated 20th November, 2017

contained names of staff of the municipality.

Petitioner's name was appearing at serial no.17

whereas Swapan Chatterjee's name was appearing

at serial no.2. In response to such letter of the

Chairman of the said municipality it was clarified

by the respondent no.2 in his Memo dated 23rd

August, 2018 no approval of the Director is

required in respect of the service of the staff who

were enlisted in the said letter dated 20th

November, 2017 in view of the Government Order

dated 28th June, 2004.

On consideration of the impugned order of

the respondent no.2 dated 29th December, 2017, it

appears that the respondent no.2 did not consider

such letter of the municipality dated 20th

November, 2017 whereby approach was made to

the respondent no.2 for grant of approval in favour

of some of the staff of the said municipality and the

clarification made by the respondent no.2 vide

Memo dated 23rd August, 2018 in response to such

letter of the said municipality dated 20th November,

2017.

It appears to this Court that while taking

decision on the right of the petitioner to grant

approval/post facto approval of his service,

respondent no.2 is required to take decision on

consideration of his Memo dated 23rd August, 2018

and the Government Order dated 28th June, 2004

which has not been done in the present case.

In such view of the matter the reasoned

order of the respondent no.2 dated 29th December,

2017 is set aside and the respondent no.2 is

directed to revisit the issue and pass a reasoned

order taking note of Memo dated 23rd August, 2018

of the respondent no.2 and the Government Order

dated 28th June, 2004 after granting opportunity of

hearing to the petitioner and a representative of the

Baidyabati Municipality. Such exercise shall be

carried on by the respondent no.2 within a period

of ten weeks from the date of communication of

this order and the order to be passed by the

respondent no.2 shall be communicated to the

petitioner within one week thereafter.

Respondent no.2 while taking such decision

in terms of the order passed by this Court today

shall rely upon the decision of the Hon'ble Division

Bench dated 19th March, 2021 passed on MAT 65

of 2021, Baidyabati Municipality (supra).

With the above direction, the writ petition

stands disposed of.

However, there shall be no order as to

costs.

Urgent photostat certified copy of the order,

if applied for, be given to the parties, upon usual

undertakings.

(Saugata Bhattacharyya, J.)