Calcutta High Court (Appellete Side)

Tarapada Nandy vs The State Of West Bengal & Ors on 10 August, 2022

            IN THE HIGH COURT AT CALCUTTA
                         Civil Appellate Jurisdiction

                               (Appellate Side)

                              M.A.T. 717 of 2018
                                   With
                             I.A. No. CAN/2/2021

                             Tarapada Nandy

                                   Vs.

                        The State of West Bengal & Ors.

Before: The Hon'ble Justice Arijit Banerjee

                    &
        The Hon'ble Justice Rai Chattopadhyay


        For the Appellants                    : Mr. Kajal Roy.


        For the Respondent Nos. 4 & 5        : Mr. Biplab Ranjan Bose.

        For the State                        : Mr. Pinaki Dhole,
                                                Mrs. Kakali Samajpaty

        Hearing Concluded on                  : 22.07.2022

        Judgment On                          : 10.08.2022


        Rai Chattopadhyay, J.:

(1) The appellant was an employee of Bansberia Municipality, who

retired from service on October 31, 2009. This is the second

round of litigation which the appellant is pursuing against his

parent department, with his claim for pensionary benefits,

which he claims to be entitled to in accordance with the existent

law.

(2) The first writ petition of the appellant was W.P.No. 30228(w) of

2014, which was disposed of vide order of this court dated April

7, 2016, when the following directions were issued :

"...Director of Local Bodies, West Bengal, is directed to process the pension papers of the writ petitioner, who retired from Bansberia Municipality on 31st October, 2009, taking into account the office order of the State Government dated 28th June, 2004,.....".

(1) In connection with the said writ petition, the Director of Local

Bodies wrote a letter dated July 5, 2016, that pension papers of

the present appellant could not be processed due to the reason

of his not being a permanent appointee, i.e, in the post of

'Accounts Clerk', under CUDP-III project and the said post not

being a sanctioned one, approval to his appointment could not

be accorded in terms of Government Order dated July 28,

2004.That, since approval of appointment could not be granted,

pension also could not be granted to him. The said letter dated

July 5, 2016, was the subject matter of the present writ petition,

in connection with which, the present appeal has arisen.

(2) The appellant alleges sheer inaction on part of the respondents,

the State and the Municipality, in complying with the Hon'ble

Court's order as above and affording him pension at an

appropriate rate, commensurate with the benefits he used to

enjoy during his service and also commensurate with what his

similarly placed erstwhile co-employees are receiving. This has

prompted him to pursue the present round of litigation by filing

the writ petition being W.P.No. 20254(w) of 2016. The order

dated February 13, 2016, which is impugned in this appeal, has

been delivered by Ld. Single Judge, in the said writ petition.

(3) It would be beneficial to briefly look into the factual background

of the case, before delving in the order impugned, as mentioned

above.

(4) The appellant has relied on the letter of Bansberia Municipality,

dated January 27, 1986, to say that by dint of the same he was

appointed as an "Accounts Clerk" with the said Municipality. In

the said letter, the employer had specified the terms of his

appointment, like scale of pay, and tenure, i.e, six months

period extendable to one more year, upon satisfactory

completion of initial six months. It was stipulated that the

appellant would have no right to be permanently absorbed.

Since the date of his appointment, the appellant has

continuously been employed and engaged under the respondent

Municipality.

(5) Thereafter the appellant has relied on three resolutions of the

Municipality, i.e, (i) dated April 30th, 1988, (ii) December 31,

1991 and (iii) March 31, 1992, to contend that his service with

the Bansberia Municipality has been made permanent by the

employer vide unanimous decision reflected in those resolutions

along with the other employees engaged in the CUDP-III project

of the Municipality. On perusal of the copies of those it appears

that 9 (nine) permanent posts of different categories were

created, and against 5 (five) of those, the following five

employees were absorbed as permanent :

Sl. Name Date of Appointment Date of Absorption

(1) SatyabrataMaulik 8.2.84 1.4.88

(2) Dipak Kumar 1.7.87 1.4.88 Bhattacharya (3) Jay Shankar Das 1.2.86 1.4.88

(4) Gopal 1.2.86 1.4.88 Bhattacharya (5) Tarapada Nandi 1.2.86 1.4.88

(6) The resolution dated March 31, 1992, however, narrates the

decision of the Board regarding the relevant date to be April 1,

1992, i.e, the date from when the appellant should be treated as

a permanent employee of the said Municipality.

(7) The decision of the Board as above was duly communicated to

the respondent No. 2, i.e, the Directorate of Local Bodies, which

by its letter dated July 13, 1992, informed the Municipality

about the onward transmission of the same to the Municipal

Affairs Department of the State.

(8) According to the appellant, the fact as stated above, read with

the amended provision of the West Bengal Municipal

(Employee's Death cum RetirementBenefits) Rules, 2003,

which came into effect from August 2003 and enforced

entitlement of an employee rendering service for not less than 7

(seven) years, to death/retiring gratuity, duly qualify him for the

retirement benefit, including pension as claimed by him.

(9) Further, the appellant relies on Memo No 300/MA/C/C-4/1A-

7/2000 dated June 28th, 2004, issued by the Department of

Municipal Affairs of the State. This is the ex-post facto approval

of the appointments/promotions, made by the urban local

bodies against sanctioned vacancies during the period from

January 1, 1986, to July 13, 1994. The appellant urges that he is

definitely entitled to be benefited under the said order.

(10) The appellant also referred to a letter dated September 20th ,

2004, of the Chairman, Bansberia Municipality, written to the

Director of Local Bodies, requesting him to move the

government for according approval of appointment regarding

the four employees, including the appellant, which remained

not adhered to or acted upon, by the State, so far as the

appellant is concerned, whereas the other persons named

therein have been preferentially treated and allowed approval of

appointment and all retrial benefits. Thus, the appellant has

been discriminated against unreasonably. He said that he has

been treated unequally and differently from the other

employees, who are said to have been similarly circumstanced

as him. They have been accorded approval of service and are

drawing retirement benefits. Thus, he has been deprived of the

constitutional protection of equality, as a bonafide and law

abiding citizen. The appellant urges that due to the purported

inaction of the respondent authorities, his vital statutory and

constitutional rights have been jeopardised, for which he seeks

remedy in the court.

(11) At this juncture we may consider for a while, the decision of the

Ld. Single Judge, which is impugned in this appeal and the

reasons recorded for arriving at the same.

(12) The impugned order dated February 13, 2018, would reveal that

the Ld. Single Bench dwelled on the following points of facts,

firstly - that the appointment of the appellant was coterminous

with the project works under the CUDP-III project, when the

post of the appellant was abolished. Next - that no other staff

engaged in CUDP-III project was made permanent by the State.

Then - that the claim of the appellant could not be sustained in

law. Upon the findings as above, writ petition of the appellant

was dismissed.

(13) In this appeal court Ld. Advocate of the appellant has

vehemently raised challenges against the said impugned order.

By relying on appropriate documents, he has pointed out that

the Board of the concerned Municipality, after evaluating the

performance of the appellant and after perceiving the necessity

of the appellant to be retained with it, had unanimously

resolved to retain him against the permanent vacancy with

effect from April 1, 1992. The decision of the Board of

Councillors of the Municipality was duly forwarded to the

Directorate of Local Bodies, which they also acknowledge, but

they took no steps either for approving the service of the

appellant or granting him appropriate service benefits.

According to him, in doing so, the respondent authorities have

not only remained benumbing to the cause of the appellant but

also seriously injured and prejudiced legal and constitutional

rights of him, in as much as, certain other employees of the said

Municipality, similarly circumstanced with the appellant have

been accorded approval in service and also appropriate

pensionary benefits. He submits that in this way his client has

been discriminated against, without any just cause, which the

Ld. Single Bench failed to consider and this appeal court may

remedy it.

(14) State opposes the grounds and prayer of the appellant- and

supports the impugned order. It has been submitted that to

accord the appellant the status of a permanent employee with

the respondent Municipality, approval of the State is a pre

requisite and that for approval of the State for such a proposal

of the Municipality, their communication to the Sate to that

effect is a pre requisite. It has further been submitted that

unless the proposal of the Municipality for permanent

absorption of the appellant is approved by the State, he cannot

be treated as a 'permanent' employee of the Municipality and

cannot be allowed whatsoever benefit like the others. In this

case, according to the State, the Municipality has failed to

forward appellant's name, unlike others, who are said to be

similarly circumstanced as the appellant, for approval of the

State. Hence, it is submitted that the State could not consider

appellant's case for approval.

(15) The contentions of the State as above are not supported by the

respondent Municipality in this case. According to it, the Board

of Councillors had accepted unanimously the name of the

appellant along with the other four employees to be forwarded

to the Director of Local bodies for approval by the State. Ld.

Advocate on behalf of the Municipality has aptly assisted the

court with copies of letters dated September 20, 2004 and

December 23, 2004, to demonstrate that due onward

transmission of the communication regarding the issue had

been made but for reasons best known to the sanctioning

authority, it maintained kept uncanny silence regarding the

appellant's matter. The respondent Municipality, in no

uncertain terms, accepts the appellant's claim to be a justified

one.

(16) The appellant's appointment in the Municipality and his

continuous service with the same till the date of his

superannuation - is an undisputed fact in this appeal. State has

not even challenged the subject matter of the resolutions of the

Municipality dated April 30, 1988 and March 31, 1992, whereby

the Municipality resolved the appellant to be accommodated

against a permanent post, w.e.f. April 1, 1992. State's challenge

lies in the fact that such decision of the Municipality has never

been communicated to it with a prayer that necessary approval

may be granted in case of the appellant. It has expressed its

inability to act in this regard in absence of any such prayer made

by the Municipality.

(17) This plea of the respondent State is utterly baseless and

unfounded, in view of the letters dated September 20, 2004 and

December 23, 2004, which were produced in Court by the

respondent Municipality. Those letters clearly support the

Municipality's claim that the proposal had duly been made to

the State. Receipt of those letters is not denied or disputed by

the State.

(18) Fact remains that the following employees of the respondent

Municipality are getting regular pension after their

superannuation :

(i) Satyabrata Moulik,

(ii) Gopal Bhattacharya, and

(iii) Basudeb Chatterjee.

(19) SatyabrataMoulik and Gopal Bhattacharya are the persons who

had been made permanent, along with the appellant, vide the

Municipality's resolutions dated April 30, 1988 and March 31,

1992. Order of Chairman of the Bansberia Municipality dated

May 27, 1992, clearly spells out that service of the following

persons are confirmed w.e.f. April 1, 1992 :

(i) Satyabrata Maulik,

(ii) Amal Kumar Biswas,

(iii) Tarapada Nandi,

(iv) Gopal Bhattacharjee,

(v) Joy Sankar Das and

(vi) Basudeb Chatterjee.

(20) All these employees, along with some others, are now enjoying

pension after superannuation, excepting the appellant.

According to the State, since his name has not been approved by

it, due to lack of appropriate communication by the

Municipality proposing such approval, he is not entitled to the

benefit like his peers. As discussed earlier, this claim of the State

would not have any legs to stand upon in view of letters dated

September 20, 2004 and December 23, 2004.

(21) On the question of the appellant being similarly circumstanced

with the other employees, who have been allowed pension, this

court is of the view that by placing sufficient document

containing tangible evidence of that, the appellant has been able

to duly satisfy the court about the same. One can even say that

the appellant seems to be on a better footing than the other

employees named above, in as much as, the appellant's

appointment letter dated January 27, 1988, shows his

appointment to be with the Municipality as an "Accounts Clerk"

and not for any particular project, like CUDP-III. It is worth

mentioning that, the claim of the Director of Local Bodies in its

letter dated July 5, 2016, that the appellant was appointed as

'Accounts Clerk' under CUDP-III project, appears to be only

imaginary, baseless and unfounded, in view of the appointment

letter of the appellant dated January 27, 1986. In view of the

other documents produced by the appellant there can be no

doubt that since his appointment, the appellant has rendered

continuous and uninterrupted service and has been confirmed

against a permanent vacancy in the Municipality.

(22) Hence, on the discussions made above, this court has no

hesitation to hold that sheer and gross inaction on the part of

the State to consider and take steps on the basis of the letter of

the Municipality dated September 20, 2004 and that of the

Directorate of Local Bodies dated December 23, 2004, till date,

has immensely prejudiced and jeopardized the appellant's rights

to his post retirement benefits relating to service. No doubt, that

the same has caused gross discrimination depriving the

appellant of his rightful dues.

(23) On the anvil of the factual findings as recorded above, the

appellant's plea of prejudice to his right of equality before law

and equal protection of laws under Article 14 of the Constitution

of India appears to have strengthened its vigour.

(24) In a case reported in AIR 1984 SC 1361 (A.L.Kalra vs

P.E.Corporation) the Hon'ble Apex Court has approvingly

quoted the following passage from the Royappa's case

(E.P.Royappavs State of Tamil Nadu AIR 1974 SC 555):-

"The basic principle which therefore, informs both Arts. 14 and 16 is equality and inhibition against discrimination. Now what is the content and reach of this great equalising principle? It is a founding faith, to use the words of pedantic or lexicographic approach. We cannot countenance any attempt to turnicateitsall embracing scope and meaning, for to do so would be to violate its activist magnitude. Equality is a dynamic concept with many aspects and dimensions and it cannot be "cribbed, cabined and confined" within traditional and doctrinate limits. From a positivistic point of view, equality is antithetic to arbitrariness. Infact equality and arbitrariness are sworn enemies; one belongs to the rule of law in a republic while the other, to the whim and caprice of an absolute monarch. Where an act is arbitrary it is implicit in it that it is unequal both according to political logic and constitutional law and is therefore violative of Art. 14 and if it affects any matter relating to public employment, it is also violative of Art. 16. Articles 14 and 16 strike at arbitrariness in State Action and ensure fairness and equality of treatment".

(25) In the case of A.L. Kalra the Hon'ble Supreme Court has been

pleased to even reject the proposition that Article 14 required

comparison with persons similarly placed, as mentioned below:-

"Para 17 - Before we deal with the contentions raised on behalf of the appellant, it is necessary to dispose of a contention having a flavour of a preliminary objection raised by Mr.Lal Narayan Sinha on behalf of the respondent - Corporation. It was urged that in the absence of any specific pleading pointing out whether anyone else was either similar situated as the appellant or dissimilarly treated the charge of discrimination cannot be entertained and no relief can be claimed on the allegation of contravention of Article 14 or Article 16 of the Constitution. It was submitted that the expression "discrimination" imports the concept of comparison between equals and if the resultant inequality is pointed out in the treatment none can say that equal protection of law has been denied. Expanding the submission, it was urged that the use of the expression 'equality' in Article 14 imports duality and comparison which is predicated upon more than one person or situation and in the absence of available material for comparison, the plea of discrimination must fail. As a corollary, it was urged that in the absence of material for comparative evaluation not only the charge of discrimination cannot be sustained but the executive action cannot be struck down on the ground that the action is per-se arbitrary. Proceeding along, it was urged that making law is a matter of legislature policy and the decree of reasonableness in every such law is equally a matter of policy and policy of the legislature is not judicially reviewable on the specious plea that it is either arbitrary or unreasonable.

Para 18 - It is difficult to accept the submission that executive action which results in denial of equal protection of law or equality before law cannot be judicially reviewed".

(26) The theory that highly placed persons in the ruling elite by and

large act responsibly and do not act arbitrarily and capriciously

has not been accepted by the Supreme Court. In the case of

Delhi Transport Corporation vs. Workers reported in AIR 1991

SC 101, Sawant,J. repelled the contention put forth in the

following words:-

"232 - The "High Authority" theory so called has already been adverted to earlier. Beyond the self-defusing and self-asserting righteous presumption, there is nothing to support it. This theory undoubtedly weighed with some authorities for sometime in the past.But it's unrealistic pretensions were soon noticed and it was buried without even so much as an ado to it. Even while Justice Shah, J. in his dissenting opinion in Moti Ram Deka vs. General Manager N.E.F Railways, Maligaon, Pandu, reported in AIR 1964 SC 600 had given vent to it, Dasgupta, J. in his concurring judgment but dealing with the same point of unguided provisions of Rule 148 (3) of the Railway Establishment Code, had not supported that view and had stuck down the rule as being violative of Article 14 of the Constitution."

(27) Another authority may be referred to, i.e, K.S Vidyarthi Vs. State

of U.P reported in 1990 4 JT 2011 (SC),wherein the Hon'ble

Apex Court has been pleased to hold that if it is shown that the

impugned State action is arbitrary and therefore, violative of

Article 14 of the Constitution, there can be no impediment in

striking down the impugned act irrespective of the question

whether an additional right, contractual or statutory, if any, is

also available to the aggrieved person.

(28) Upon the entire discussion as above, we find no cogent and

sufficient grounds in the impugned order dated February 13,

2018, to uphold the same. The findings of the Ld.Single Bench,

as discussed in paragraph (15) of this judgment are not based