Biplab Kumar Saha vs State Of West Bengal & Ors
2022 Latest Caselaw 7953 Cal

S/L 32
01.12.2022
Court. No. 12
Suvayan
                              WPA 28357 of 2014
                                      With
                IA No: CAN 1 of 2016 (Old No. CAN 6998 of 2016)

                                     Biplab Kumar Saha
                                             Vs.
                                 State of West Bengal & Ors.

                      Ms. Susmita Saha Dutta
                      Mr. Niladri Saha
                                                              ...for the petitioner.

                      Mr. Pinaki Dhole
                      Mr. K. M. Hossain
                                                  ...for the respondent nos. 1 & 2.

Mr. Arka Kumar Nag Mr. S. Banerjee Ms. Deboleena Ghosh ...for the respondent nos. 3, 4 & 5.

Learned Advocate for the writ petitioner, learned

Advocate for respondent Nos. 1 and 2/State and learned

Advocate for the respondent Nos. 3, 4 and 5/Raiganj

Municipality and its officials are present.

The present writ application is now taken up for

hearing.

In support of instant writ petition, learned

Advocate for the writ petitioner draws attention of this

Court to the impugned order dated 06.08.2013 as passed

by the respondent No. 2 which has been communicated to

the present petitioner along with other 13 persons under

cover of letter No. 881(15)/DLB/J-402/13-2013 dated

07.08.2013 whereby and whereunder the respondent No.

2 turned down the prayer of absorption of the present

writ petitioner and the other 13 persons. Learned

Advocate for the writ petitioner submitted before this

Court that challenging the said impugned order dated

06.08.2013 the other 13 persons had preferred a writ

petition before this Hon'ble Court being WP 26486 (W) of

2013 which was dismissed by a co-ordinate Bench of this

Hon'ble Court on 08.05.2014. It is further submitted that

challenging the said order dated 08.05.2014 an intra-

court appeal has been preferred by the said 13 aggrieved

persons being AST No. 242 of 2014 and by an order dated

29.01.2018 the said appeal was allowed by the Division

Bench of this High Court. It is contended on behalf of the

present writ petitioner that since the present writ

petitioner stands on the same footing with the 13

appellants of AST No. 242 of 2014, the relief as given by

the Hon'ble Division bench in the aforesaid appeal to the

said 13 appellants be also extended to the present writ

petitioner. Learned Advocate for the writ petitioner, thus,

requests this Court to pass an appropriate order in view of

her submission as noted above.

Learned Advocate for the respondent Nos. 1 and 2,

however, opposes such contention of the writ petitioner.

It is argued that since the present writ petitioner was a

temporary employee and was working in an unsanctioned

post, the present writ petitioner cannot be absorbed in the

regular pay role since the respondent No. 2 is not the

appropriate authority for creation of post. It is, thus,

submitted on behalf of the State that the present writ

petition may be dismissed.

Learned Advocate for the respondent Nos. 3, 4 and

5 echoes the version of the learned Advocate for the

respondent Nos. 1 and 2.

This Court has perused the entire materials as

placed before this Court. This Court has given its anxious

consideration over the submissions of the learned

Advocates for both sides. For effective disposal of the

instant writ application a look to the judgment dated

29.01.2018 as passed in AST No. 242 of 2014, vis a vis the

subsequent order dated 08.06.2018 as passed in the self-

same appeal is necessary.

The operative portion of the AST No. 242 of 2014 is

as under:

"In such a situation the Director of

Local Bodies West Bengal ought not to

have folded his hands and said that he did

not have the power to create the posts. He

ought to have appreciated the long service

of the appellants', its continuity, the right

of each one of them to be absorbed in

permanent service. Instead of saying that

it was the government which could create

new posts he should have referred the

matter to the appropriate functionary, so

that he could take a decision to regularise

the services of the appellants. Leave of

this court for this purpose may have been

taken, before making such a referral.

In that view of the matter we direct

the Principal Secretary in charge of the

local bodies to forthwith create a

sufficient number of posts to absorb the

thirteen appellants. The Principal

Secretary finance is to accord financial

concurrence. The appointments of the

appellants be given approval and

regularised from a date to be decided by

the government. The impugned order

dated 7th August, 2013 is quashed.

The impugned judgment and order

dated 8th May, 2014 is set aside."

The operative portion of the order dated

08.06.2018 as passed in AST No. 242 of 2014 is

reproduced herein below in verbatim:

"Let the third last paragraph of the

said judgment and order be corrected by

deleting the phrase "from a date to be

decided by the Government" and replaced

by the following "notionally from their

respective dates of appointment, between

1983-1985. The appellants would be

entitled to the pensionary benefits only

and will have no other claim.

This order should be fully complied

with by the respondents within three

months of communication of this order.

This order is to be read along with

the said judgment and order dated 29th

January, 2018.""

On perusal of the letter dated 07.08.2013 as

written by respondent No. 2 addressed to the present writ

petitioner as well as to the other 13 persons who are

appellants in AST No. 242 of 2014 along with the

reasoned order dated 06.08.2013 it reveals to this Court

that the footing of the present writ petitioner is same with

the 13 persons who are the appellants in AST No. 242 of

2014.

In view of such, this Court has get no hesitation to

hold that the facts and circumstances as involved in AST

No. 242 of 2014 duly matches to the facts and

circumstances as involved in the instant writ petition.

Accordingly, the writ petitioner is entitled to the

same relief as has been obtained by the 13 appellants in

AST No. 242 of 2014.

Accordingly, Principal Secretary in Charge of the

Local Bodies of West Bengal is hereby directed to create a

post to absorb the present writ petitioner with effect from

the date of joining in his service since it has been reported

that the present writ petitioner has been superannuated

in the meantime.

The principal Secretary, Finance Department,

Government of West Bengal is hereby directed to accord

financial concurrence with regard to the creation of post

of the present writ petitioner with effect from date of his

joining in the service. The appointment of the writ

petitioner be given approval and regularised notionally

from the date of appointment of the writ petitioner that is

with effect from 07.10.1985. It is further ordered that the

present writ petitioner is entitled to pensionary benefits

including arrear pension along with statutory interest

thereon, however, he shall not be entitled to any other

claim. It is further directed that the instant order shall

have to be complied with by the respondents within three

months from the date of communication of this order.

With the abovementioned observation, the instant

writ petition being WPA 28375 of 2014 along with all

pending interim applications are disposed of.

Urgent photostat certified copies of this order, if

applied for, be supplied to the parties upon compliance

with all the necessary formalities.

(Partha Sarathi Sen, J.)