Calcutta High Court (Appellete Side)
Sk. Bashiar Rahaman vs The State Of West Bengal & Ors on 23 December, 2022
IN THE HIGH COURT AT CALCUTTA
CONSTITUTIONAL WRIT JURISDICTION
APPELLATE SIDE
Before:
The Hon'ble Justice Hiranmay Bhattacharyya
WPA 2186 of 2016
Sk. Bashiar Rahaman
Vs.
The State of West Bengal & Ors.
For the Petitioner : Mr. Sandip Kr. Bhattacharya
...advocate
For the State : Mr. Jahar Lal De
Mr. Robiul Islam ... advocates
For the respondent no. 3 : Md. Salahuddin
Md. Ahsanuzzaman
Md. Raziuddin ........ advocates
Heard on : 08.12.2022
Judgment on : 23.12.2022
Hiranmay Bhattacharyya, J.:-
1. The writ petitioner has prayed for absorption as Rent Collector
in the Office of the Board of Waqf, West Bengal (for short "the
Board") and to allow periodical promotions, incremental
benefits as well as retiral benefits including pension.
2. The writ petitioner claims to have been appointed sometimes
in the year 1989 as Rent Collector in the office of the Official
Mutawalli and is presently working under the Direct
Management Section of the Board as a Rent Collector. The
then Chief Executive Officer of the Board allowed the scale of
pay of Rs. 3350-6325 to the petitioner with effect from
01.04.1997. It is the further case of the writ petitioner that the
Board approached the Government on several occasions for
absorbing him to the post of Rent Collector but no positive
response came from the end of the Government. In the
meantime, the Governor was pleased to approve the creation
of 52 additional posts for the Board including four posts of
Rent Collector (LDA) by a Government order no. 558-MD dated
11.04.2008. After creation of such posts, the Board in its
meeting held on September 5th, 2008 resolved that the writ
petitioner be absorbed against the posts of Rent Collector
(LDA) with grade pay with effect from 01.09.2008 as per the
rules and regulations of the Board.
3. The Chief Executive Officer of the Board by a letter dated
06.03.2009 sought for administrative approval for absorption
of the writ petitioner under the regular establishment of the
Board from the Secretary, Minority Affairs and Madrash
Education. The writ petitioner, by a letter dated May 31st,
2011, requested the Chief Executive Officer of the Board to
take immediate action for his absorption and to grant all
service benefits in accordance with law. The writ petitioner
alleges inaction on the part of the respondent authorities.
4. Mr. Bhattacharyya, learned Advocate for the petitioner referred
to the provisions laid down under Section 24 of the Waqf Act,
1995 (for short "the 1995 Act") and contended that the Board
in consultation with the State Government shall determine the
number of officers and other employees as well as the details
thereof. He further contended that the function of the State
Government ended with the approval and creation of 52
Additional Sanctioned posts for the Board and the Chief
Executive Officer has the exclusive authority to make
appointments to the said posts created and approved by the
State Government. He contended that
regularisation/absorption of the appointment of the petitioner
is permissible under Article 162 of the Constitution of India
and further ratification of appointment with retrospective
effect is permissible as held by the Hon'ble Supreme Court in
the case of Maharashtra State Mining Corporation vs.
Sunil reported at 2006 (5) SCC 1996.
5. Mr. Bhattacharyya contended that the expression
"consultation" appearing in Section 24(1) of the 1995 Act does
not in any manner abrogate the right of the Board to appoint
persons in the vacant posts and consultation does not mean
seeking concurrence or consent from the State Government.
In support of such contention, he relied upon the decision of
the Hon'ble Supreme Court in the case of Supreme Court
Advocate-on-Record Association and others vs. Union of
India reported at (1993)4 SCC 441. He also submitted that
Article 162 of the Constitution permits executive action in the
absence of any legislation and in support of such contention
he placed reliance upon a decision in the case of B.N.
Nagaranjan and others vs. State of Mysore and others
reported at AIR 1966 SC 1942.
6. Mr. Bhattacharyya also relied upon an unreported decision in
the case of Pritam Kanjilal vs. State of West Bengal and
others delivered on August 18, 2022 in WPA 10784 of 2017 in
support of his contention that the writ petitioner can be
absorbed in the vacant posts of Rent Collector. Mr.
Bhattacharjee also relied upon a decision of Hon'ble Supreme
Court in the case of Ashok Kumar Sahu vs. Union of India
and others reported at 2006 (6) SCC 704.
7. Mr. Dey, learned Advocate representing the State contended
that the appointment of the petitioner as Rent collector by the
Official Mutawalli is an illegal one as he was not appointed
against any sanctioned posts nor by following any selection
process. Mr. Dey further contended that the Official Mutawalli
did not have the power to appoint the writ petitioner as Rent
Collector after expiry of his term of Official Mutawalli.
8. By referring to the Memo dated July 27, 1999 issued by the
Secretary to the Government of West Bengal, Mr. Dey
contended that the State do not have any objection to the
retention of the 07 employees including the writ petitioner
engaged by the Ex-Official Mutawalli of the Waqf Estate
provided the fund required for the purpose of payment of
salaries etc., is borne out of the earnings of the Waqf Estates.
Mr. Dey concluded by submitting that a person illegally
appointed do not have any right to be absorbed or get his
appointment regularized.
9. Mr. Salahuddin, the learned Advocate appearing for the Board
contended that the Board moved the Government for
absorbing the petitioner to the post of Rent Collector. He
further contended that after creation and sanction of the 52
additional posts by the Government, the Board in its meeting
adopted a resolution to absorb the writ petitioner as the Rent
Collector with Grade Pay with effect from September 1, 2008
and thereafter sought for necessary administrative approval
from the Government. He contended that there is no inaction
in so far as the respondent no. 3 is concerned. He placed
reliance upon Section 24 of the 1934 Act to highlight the
power of appointment of officers and servants of the Board.
10. Heard the learned Advocates for the parties, and perused the
materials placed.
11. Record reveals that one Md. Asraf Ali was appointed as Official
Mutawalli under Section 41 of the Bengal Waqf Act, 1934 (in
short "the 1934 Act") and his term expired on 25.03.1986.
The writ petitioner claims to have been appointed sometimes
in the year 1989 by the Official Mutawalli but the fact remains
that such appointment was made after expiry of his term as
Official Mutawalli. Therefore, the said appointment was made
by a person without an authority to make such appointment.
12. Moreover, by virtue of Section 24 of the 1934 Act the power of
appointing the officers and the servants of the Board have
been vested upon the Commissioner. Therefore, the argument
of Mr. Bhattacharyya that the appointment of the writ
petitioner under the 1934 Act was valid is not acceptable to
this Court as even under the 1934 Act the Official Mutawalli
was not empowered to appoint the officers and the servants of
the Board.
13. The petitioner continued to perform his duties as a Rent
Collector even after the coming into force of the 1995 Act. It is
evident from the Government Order no. 558-MD dated
11.04.2008 that the Governor has been pleased to approve
under the provision of Section 24 of the 1995 Act, the creation
of 52 additional posts under the Board including four posts of
Rent Collector (LDA). It appears from the said Government
Order that the pay scale fixed for the post of Rent Collector is
3350-6325 plus usual allowances. It was further specified in
the said Government Order that Regulation under Section 110
of the 1995 Act for the terms and conditions of services in
respect of new category of posts created by the said
Government order to be made before any recruitment is done.
14. In exercise of the powers conferred under Section 110 of the
1995 Act, the Board, with the approval of the State of West
Bengal, framed the West Bengal Waqf Regulations, 2008 (for
short "2008 Regulations) and a notification was issued being
number 1604 dated 05.11.2008.
15. After the creation of 52 additional posts vide Government
order dated 11.04.2008 and prior to the 2008 regulations
being notified on 05.11.2008, the Board in its meeting held on
05.09.2008 resolved that the writ petitioner be absorbed
against the post of Rent Collector with Grade Pay with effect
from 01.09.2008 and sought for administrative approval for
absorption of the writ petitioner in the regular establishment
of the Board by a memo dated 6 th March, 2009.
16. The learned Advocate for the petitioner would contend that
since the decision to absorb the writ petitioner as Rent
Collector in the said vacant post was taken at a point of time
when the 2008 Regulations did not see the light of the day, the
terms and conditions as well as the mode of recruitment as
laid down under the 2008 Regulations cannot be made
applicable to the case of the writ petitioner as the writ
petitioners were appointed even prior to the coming into force
of the 1995 Act. He would further contend that since the
petitioner was appointed in view of the provisions under the
1934 Act, the petitioner has a right to be absorbed in the
vacant post of Rent Collector.
17. The writ petitioner claims to have been appointed sometimes
in the year 1989. Therefore, by no stretch of imagination, the
writ petitioner can be said to have been appointed in the
vacant posts created by virtue of the Government Order no.
558-MD dated 11.04.2008. Moreover, the said Government
order dated 11.04.2008 specifically provides that appointment
under such posts created by the said Government Order
would be in accordance with the Regulations framed under
Section 110 of the 1995 Act.
18. The writ petitioner was appointed by a person who did not
have any authority and/or power to appoint him at the
relevant point of time. He was also not appointed by following
the provisions of the 1934 Act which was prevailing at the time
of his appointment. The petitioner could not substantiate that
his appointment was a regular one and that he was appointed
against a sanctioned post. Therefore, this Court is of the
considered view, that the appointment of the writ petitioner
was nothing but an illegal one and not an irregular
appointment which can be regularised.
19. It is well-settled that an illegal appointment cannot be
regularized by this Court in exercise of its powers under
Article 226 of the Constitution of India. The Hon'ble Supreme
Court in the case of Secretary, State of Karnataka and ors.
vs. Umadevi (3) and ors. reported at (2006) 4 SCC 1 held
that the High Court's acting under Article 226 of the
Constitution should not ordinarily issue directions for
absorption, regularisations or permanent continuance unless
the recruitment itself was made regularly and in terms of the
constitutional scheme. Merely because an employee has
worked for a sufficient period of time, he would not be entitled
to any right to be absorbed or made permanent in the service.
The Supreme Court in the said decision held thus-
"43. Thus, it is clear that adherence to the rule of
equality in public employment is a basic feature of our
Constitution and since the rule of law is the core of our
Constitution, a Court would certainly be disabled from
passing an order upholding a violation of Article 14 or
in ordering the overlooking of the need to comply with
the requirements of Article 14 read with Article 16 of
the Constitution. Therefore, consistent with the scheme
for public employment, this Court while laying down
the law, has necessarily to hold that unless the
appointment is in terms of the relevant rules and after
a proper competition among qualified persons, the
same would not confer any right on the appointee. If it
is a contractual appointment, the appointment comes
to an end at the end of the contract, if it were an
engagement or appointment on daily wages or casual
basis, the same would come to an end when it is
discontinued. Similarly, a temporary employee could
not claim to be made permanent on the expiry of his
term of appointment. It has also to be clarified that
merely because a temporary employee or a casual
wage worker is continued for a time beyond the term
of his appointment, he would not be entitled to be
absorbed in regular service or made permanent,
merely on the strength of such continuance, if the
original appointment was not made by following a due
process of selection as envisaged by the relevant
rules. It is not open to the court to prevent regular
recruitment at the instance of temporary employees
whose period of employment has come to an end or of
ad hoc employees who by the very nature of their
appointment, do not acquire any right. The High
Courts acting under Article 226 of the Constitution,
should not ordinarily issue directions for absorption,
regularisation, or permanent continuance unless the
recruitment itself was made regularly and in terms of
the constitutional scheme. Merely because an
employee had continued under cover of an order of the
court, which we have described as 'litigious
employment' in the earlier part of the judgment, he
would not be entitled to any right to be absorbed or
made permanent in the service. In fact, in such cases,
the High Court may not be justified in issuing interim
directions, since, after all, if ultimately the employee
approaching it is found entitled to relief, it may be
possible for it to mould the relief in such a manner that
ultimately no prejudice will be caused to him, whereas
an interim direction to continue his employment would
hold up the regular procedure for selection or impose
on the State the burden of paying an employee who is
really not required. The courts must be careful in
ensuring that they do not interfere unduly with the
economic arrangement of its affairs by the State or its
instrumentalities or lend themselves the instruments to
facilitate the bypassing of the constitutional and
statutory mandates."
"45. While directing that appointments, temporary or
casual, be regularised or made permanent, the courts
are swayed by the fact that the person concerned has
worked for some time and in some cases for a
considerable length of time. It is not as if the person
who accepts an engagement either temporary or
casual in nature, is not aware of the nature of his
employment. He accepts the employment with open
eyes. It may be true that he is not in a position to
bargain -- not at arm's length -- since he might have
been searching for some employment so as to eke out
his livelihood and accepts whatever he gets. But on
that ground alone, it would not be appropriate to
jettison the constitutional scheme of appointment and
to take the view that a person who has temporarily or
casually got employed should be directed to be
continued permanently. By doing so, it will be creating
another mode of public appointment which is not
permissible. If the court were to void a contractual
employment of this nature on the ground that the
parties were not having equal bargaining power, that
too would not enable the court to grant any relief to
that employee. A total embargo on such casual or
temporary employment is not possible, given the
exigencies of administration and if imposed, would
only mean that some people who at least get
employment temporarily, contractually or casually,
would not be getting even that employment when
securing of such employment brings at least some
succour to them. After all, innumerable citizens of our
vast country are in search of employment and one is
not compelled to accept a casual or temporary
employment if one is not inclined to go in for such an
employment. It is in that context that one has to
proceed on the basis that the employment was
accepted fully knowing the nature of it and the
consequences flowing from it. In other words, even
while accepting the employment, the person concerned
knows the nature of his employment. It is not an
appointment to a post in the real sense of the term.
The claim acquired by him in the post in which he is
temporarily employed or the interest in that post
cannot be considered to be of such a magnitude as to
enable the giving up of the procedure established, for
making regular appointments to available posts in the
services of the State. The argument that since one has
been working for some time in the post, it will not be
just to discontinue him, even though he was aware of
the nature of the employment when he first took it up,
is not one that would enable the jettisoning of the
procedure established by law for public employment
and would have to fail when tested on the touchstone
of constitutionality and equality of opportunity
enshrined in Article 14 of the Constitution."
20. Therefore, by applying the aforesaid proposition laid down by
the Hon'ble Supreme Court of India in Umadevi (3) (supra),
this Court holds that the writ petitioner cannot claim to be
absorbed in the posts of Rent Collector created and approved
vide Government Order dated 11.04.2008 merely on the
ground that he is rendering service for a long time even prior
to the coming into force of the 1995 Act.
21. Reliance placed by Mr. Bhattacharyya on the memorandum
no. 8305-F dated September 26, 2005 issued by the Special
Secretary to the Government of West Bengal Finance
Department is misplaced as the same is applicable in cases
where the employees are initially recruited on contract basis
with the approval of the Appointment Committee of the
Cabinet (ACC) after following the norms, rules and methods as
applicable to the relevant posts and if they are still continuing
in contract service be brought under regular establishment
against regular vacancies in which they have been initially
appointed with the approval of ACC. The said memorandum
do not have any manner of application to the facts of this case
as the preconditions for regularization as indicated in the said
memorandum has not been satisfied in the case on hand.
22. In the case of Pritam kanjilal (supra) the writ petitioner
therein was appointed in the sanctioned post after following
the norms and rules for such selection and also possessed
requisite qualifications for such post. It was specifically held
therein that the writ petitioner stands on a better footing than
a person whose appointment is an irregular one. The said
decision being distinguishable on facts is not applicable to the
case on hand.
23. There is, however, no quarrel to the proposition of law laid
down by the Hon'ble Supreme Court in B.N. Nagaranjan
(supra) that there is nothing in Article 309 of the Constitution
of India which abridges the power of the executive to act under
Article 162 of the Constitution of India without a law. The
issue involved in the case on hand is whether a person illegally
appointed can be regularized in service which was not in issue
in the said reported case. In view thereof, the decision in the
case of B.N. Nagaranjan (supra) is of no assistance to the
petitioner.
24. The decision of the Hon'ble Supreme Court in the case of
Supreme Court Advocate-on-Record Association (supra)
was with regard to the issue of appointment of Judges to
Supreme Court and High Courts and primacy to opinion of
Chief Justice of India as head of Judiciary in the consultative
process. The said decision being distinguishable on facts has
no manner of application to the case on hand.
25. There is no quarrel to the proposition of law laid down by the
Hon'ble Supreme Court in Ashoke Kumar Sahu (supra) that
there is a distinction between the expressions "approval" and
"acceptance". In the case on hand, the Board sought for
administrative approval from the Government for absorbing
the writ petitioners in the vacant posts of Rent Collector
created vide Government Order dated 11.04.2008. It is not a
case of ratification as argued by Mr. Bhattacharyya. Therefore,
the said decision is not of any assistance to the petitioner.
26. In Maharasthra State Mining Corporation (supra), the
Managing Director did not have the authority to pass the order
of dismissal but, subsequently, the Board of Directors passed
a resolution ratifying the action taken by the Managing
Director in respect of the disciplinary action taken against the
delinquent. The said decision being distinguishable on facts
has no manner of application to the case on hand.
27. This Court is of the considered view that in order to fasten the
State with the financial liability in respect of the appointments
to the posts created vide Government order dated 11.04.2008,
approval of the State is necessary.
28. For the reasons as aforesaid, this Court is not inclined to pass
any direction upon the State of West Bengal for absorption of
the writ petitioner in the post of Rent Collector under the
Board of Waqf (West Bengal). The writ petition accordingly fails
and the same stands dismissed without any order as to costs.
29. Urgent photostat certified copy of this judgment be given to
the parties upon compliance of all formalities.
(Hiranmay Bhattacharyya, J.)
(P.A.-Sanchita)
