Calcutta High Court (Appellete Side)
The State Of West Bengal & Others vs Lipi Banerjee & Others on 23 December, 2022
MAT NO. (1803 OF 2017 & 1756 OF 2017)
REPORTABLE
IN THE HIGH COURT OF JUDICATURE AT CALCUTTA
CIVIL APPELLATE JURISDICTION
APPELLATE SIDE
RESERVED ON: 06.12.2022
DELIVERED ON: 23.12.2022
CORAM:
THE HON'BLE MR. JUSTICE T.S. SIVAGNANAM
AND
THE HON'BLE MR. JUSTICE HIRANMAY BHATTACHARYYA
MAT NO. 1803 OF 2017
WITH
MAT NO. 1756 OF 2017
THE STATE OF WEST BENGAL & OTHERS
VERSUS
LIPI BANERJEE & OTHERS
WITH
NEW ALIPORE COLLEGE & OTHERS
VERSUS
LIPI BANERJEE & OTHERS
Appearance:-
Mr. Samrat Sen, Senior Advocate.
Mr. Subhabrata Das, Advocate.
........For the Appellants
(in MAT 1803 of 2017)
Mr. Kishore Dutta Senior Advocate.
Mr. Santanu Kumar Mitra, Advocate.
Page 1 of 13
MAT NO. (1803 OF 2017 & 1756 OF 2017)
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Mr. Amartya Pal, Advocate
.......For the Appellants
(in MAT 1756 of 2017)
Mr. Subir Sanyal, Advocate.
Mr. Joydeep Acharya, Advocate.
Mr. Chandrachur Chatterjee, Advocate.
......For the Respondent/Writ Petitioner
Mr. Jaharlal De, Advocate.
Mr. Shamim ul Bari, Advocate.
.....For the State
(in MAT 1756 of 2017)
Mr. Amitava Chaudhuri, Advocate.
Mr. N. Ray, Advocate.
.....For the D.P.I.
JUDGMENT
(Judgment of the Court was delivered by T.S.SIVAGNANAM, J.)
1. These appeals are directed against the order dated 16.08.2017 passed in
WP No. 11925 (W) of 2004. The said writ petition was filed by the first
respondent herein Mrs. Lipi Banerjee. The appellants in MAT No. 1803 of
2017 are the State of West Bengal through Secretary, Department of Higher
Education and the Director of Public Instructions, Education Department,
Government of West Bengal. They were arrayed as respondents 1 and 2 in
the writ petition. MAT No. 1756 of 2017 has been filed by the Management
of New Alipore College, in which the writ petitioner is working. Since the
appeals are directed against the same order passed in the writ petition, they
were heard together and they are disposed of by this common judgment.
2. The writ petition was filed for issuance of a writ of mandamus to direct
the appellants particularly the college authorities to approve the
appointment of the writ petitioner with effect from the date of her joining i.e.
29.04.1997, considering the facts that she was appointed in a clear vacant
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post created under Go No. 1028-EDN(CS) dated 10.12.1996 in a vacancy
which arose on account of the promotion of one Timir Guha. The learned
Single Bench by the impugned order has allowed the writ petition and also
imposed cost of Rs. 50,000/- payable by the management of the New Alipore
College who shall be herein after referred to as the management.
3. We have heard Mr. Samrat Sen, learned senior advocate assisted by Mr.
Subhabrata Das, for the appellants in MAT No. 1803 of 2017, Mr. Kishore
Dutta learned senior advocate assisted by Mr. Santanu Kumar Mitra, and
Mr. Amartya Pal for the appellants in MAT No. 1756 of 2017, Mr. Subir
Sanyal, assisted by Mr. Joydeep Acharya and Mr. Chandrachur Chatterjee
for the respondent/writ petitioner, Mr. Jaharlal De and Mr. Shamim ul Bari
for the State in MAT No. 1756 of 2017, Mr. Amitava Chaudhuri and Mr. N.
Ray appearing for the Director of Public Instructions.
4. The writ petitioner had completed her bachelor degree in Philosophy
during the year 1988 and acquired post graduate qualification in the year
1990, she also possesses a diploma in systems management, has working
knowledge, as typist and has worked in various other establishments, before
she applied for the post of clerk in the appellant management. The appellant
management inserted an advertisement in the "Statesmen" dated
10.04.1997 inviting applications for clerical post in cadre "C" and in
response to such application, the writ petitioner applied for the post of clerk
by the application dated 11.04.1997 mentioning her qualifications and other
credentials. The application was considered and the writ petitioner was
directed to appear before the Selection Committee on 27.04.1997. After
undergoing a process of recruitment by order dated 28.04.1997, the
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management appointed the writ petitioner as clerk in the day shift. The
appointment order states that it is subject to the approval by the Director of
Public Instructions and that she has been appointed with effect from
28.04.1997 as a clerk in the day shift by the governing body of the
management against the post sanctioned by Go No. 1028-EDU (CS) dated
10.12.1996 on a basic pay of Rs. 1040 in the scale of pay Rs. 1040-1960
and she will be entitled to get other benefits in the scale as and when it is
sanctioned by the Government after approval by the Director of Public
Instructions (DPI).The writ petitioner was requested to join the post by
30.04.1997 positively otherwise the letter of appointment will be treated as
cancelled. Further the appointment order stated that the authority will
transfer her to any other department, if required. In terms of the
appointment letter, the writ petitioner joined the post and submitted her
joining report dated 29.04.1997. Since the appointment had to be approved
by DPI, the management by communication dated 24.06.1997 forwarded the
relevant papers to the DPI for approval of the appointment. Along with the
said communication dated 24.06.1997, a copy of the governing body
resolution, decision regarding formation of selection sub-committee; a copy
of the Go No. 1028 EDU(CS) dated 10.12.1996 by which the post was
created; letter to the employment exchange/advertisement from the college;
list of sponsored candidates by the employment exchange; list of candidates
who attended the selection process before the Selection Committee with
their signatures; appointment letters; joining report; biodata of the
candidate; date of birth as per certificate and SC/ST/OBC Certificate
wherever applicable. Perusal of the minutes of the meeting of the governing
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body held on 28.04.1997 shows that the writ petitioner was appointed in the
vacant post of clerk which arose consequent upon the promotion of Shri
Timir Guha Roy as head clerk of day shift with effect from 30.04.1997 on a
monthly basic pay of Rs. 1040 plus usual admissible allowance in the scale
of pay of Rs. 1040-25-1215-30-1485-35-1590-40-1670-50-1920 vide Go No.
3063-EDN(CS) dated 07.12.1973. Along with the writ petitioner several
other non- teaching staff were also appointed whose credentials were also
forwarded to the DPI for approval. To be noted that among those non-
teaching staff who also applied along with the writ petitioner in response to
the advertisement issued by the management, their appointments have been
approved and the names of some of those non-teaching staff are Shri
Sukhen Das, Shri Mantosh Majumder, Shri Ranjit Dey and Uttam Maity.
5. It appears that there was delay in considering the approval of the writ
petitioner's appointment as well as the appointment of other non-teaching
staff for nearly two years which prompted the writ petitioner and others to
submit a representation dated 10.01.1999 to the DPI, pointing out that
pursuant to the decision taken by the governing body dated 28.04.1997 and
after completing all formalities including interview by the Selection
Committee all of them were duly appointed in the respective post and they
also reliably understand that the management has forwarded their papers to
the DPI for approval. Further it was stated that all of them have been
continuously and uninterruptedly serving the institutions with utmost
sincerity and it is a matter of great concern that they have not yet received
the approval orders consequently, they are denied the benefits payable to
the full time staff. Therefore, request was made to the DPI to accord
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approval of their appointments at an early date. There were 15 signatories to
the representation and the writ petitioner was one among them. With regard
to the number of posts which was sanctioned, it appears that the governing
body of the management felt a need for sanction of additional posts and a
decision was taken in the meeting of the governing body held on 28.04.1997
in which one of the agenda was regarding creation of post in various
categories of non-teaching staff. This resolution is of relevance because it
shows the number of posts which were sanctioned and the additional staff
which was being requisitioned from the Government. In the day shift, the
number of posts of clerk sanctioned were two and one additional post was
sought for by the management. This fact would be of relevance at a later
stage when we go into the other aspects. The DPI by communication dated
16.02.1999, apropos the request of the management for approval of the non-
teaching staff stated that the management has not observed the recruitment
rules as per the Government orders and irregularities have occurred at the
time of appointment of non-teaching posts created in Go No. 1028-EDN(CS)
dated 10.12.1996. The list of non-teaching posts which were to be filled up
were also mentioned in the said communication. It was further stated that
the management authorities appointed excess staff and they had appointed
only one person through the employment exchange in violation of the
Government order dated 31.10.1995. Further age proof certificate and
certificate of qualifications has not been submitted, the governing body
resolution regarding adjustments of excess post has not been submitted, the
governing body resolution regarding condonation of over-age of approved
class 4 employees who have been appointed in grade C post has not been
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submitted and reservation quota has not been sanctioned. From the
communication sent by DPI dated 16.02.1999, it is seen that the approval
sought for by the management in respect of non-teaching staff who were
appointed has not been rejected. The DPI has pointed out certain
irregularities and deficiencies alleged to have been committed by the
management in the matter of appointment of non-teaching staff. Therefore,
the appellants are under a mis-conception that the approval sought for has
been rejected by DPI which is not the case as could be seen from the
communication of DPI dated 16.02.1999. Thus, what was incumbent upon
the management is to respond to the communication by justifying their
selection process and pointing out as to how they have not violated any of
the Government orders etc. Furthermore, it would have been well open to
the management to contend that it is not mandatory to draw candidates
only from the employment exchange as it has been held in several decisions
that the pool of candidates available with the employment exchange is one of
the sources which should be explored while selecting the candidates to
public employment. Unfortunately, the appellant college failed to proceed in
such a direction. But surprisingly took another decision in its governing
body meeting held on 28.08.1999. The procedure adopted by the appellant
management is wholly illegal. The order of appointment issued to the
petitioner continued to remain valid and the petitioner was working. The
appellant management was duty bound to stand by their decision in
appointing the writ petitioner who was found fit by the Selection Committee
which decision was approved by the governing body in its meeting held on
28.04.1997. Unfortunately, the governing body took a fresh decision on
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28.08.1999 and resolved to appoint one Motilal Barik in the post of clerk
day shift in the vacancy caused on account of the promotion of Shri Timir
Guha Roy instead of library clerk-evening with effect from 30.04.1997. There
is nothing to indicate that the governing body which took such a decision on
28.08.1999 had superseded its earlier decision taken on 28.04.1997 by
which the writ petitioner and others were appointed. In any event, the writ
petitioner was not issued any notice by the management about such a
decision. What is more shocking is that the Shri Motilal Barik was grossly
over-age and the management resolved to condone the over-aged of 15 years
6 months and 29 days in respect of the said candidate and such decision
was communicated to the DPI vide letter dated 06.09.1999. Even thereafter,
the writ petitioner continued to work with the management and it is stated
that the management was paying her salary which was on consolidated
basis much below the scale of pay payable for the said post held by the writ
petitioner. Since there was continuous stale mate in the matter and there
was a threat of the writ petitioner being removed from the employment, and
having left with no other option had approached this court and filed the writ
petition.
6. By order dated 22.11.2004, an interim order was granted directing that
the writ petitioner services should not be disturbed. Thereafter, the
appellants had filed their affidavit-in-opposition and the writ petition was
finally heard and allowed by the impugned order dated 16.08.2017.
7. The appellants State seeks to resist the approval of the appointment of
the writ petitioner by contending that there was no post available in which
the writ petitioner could have been accommodated. The learned Additional
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Advocate General had made elaborate submissions in this regard and has
drawn our attention to various documents. After having considered the
submissions and perused the documents, we find that the stand taken by
the appellant state is wholly unjustified. Admittedly on the date when the
writ petitioner was appointed there was a clear vacant post caused on
account of promotion of an existing candidate who was holding the post of
clerk. If that be so, the question of raising a plea that there was no post
available to which the writ petitioner could be appointed is a plea that has to
be outrightly rejected. The appellant state seeks to contend that the
Government had issued orders for conversion of the post and thereafter by
reserving the post for a schedule tribe candidate. This conversion was done
by the management at the first instance and it is clear that it is a sinister
move on the part of the management to do so and in all probabilities with a
view to render the challenge made by the writ petitioner as infructuous. In
any event such conversion which took place much after the appointment of
the writ petitioner could have no impact on her appointment. As already
pointed out the management could not have taken a fresh decision to
appoint Shri Motilal Barik, since the appointment of the writ petitioner had
been forwarded to the DPI for approval and DPI had not rejected the
approval as could be seen from the communication dated 16.02.1999. Thus,
if the management was a genuine employer, they should have sustained
their decision taken in the governing body in the meeting held on
28.04.1997. But for reasons best known to the appellant management, they
chose to prefer Shri Motilal Barik who was grossly over-aged by more than
15 years which was condoned by the management. It is not clear as to how
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the DPI could have accepted such condonation especially when in the
communication dated 16.09.1999 the condonation of overaged was one of
the issued pointed out by DPI. The condonation of over age of Motilal Barik
is also a sinister move on the part of the management to somehow deprive
the writ petitioner of her legitimate and legal rights. The appellant/DPI
further would contend that there was restructuring of the number of posts
sanctioned and consequently the appointment of the writ petitioner is to be
treated as an appointment to a post which has not been sanctioned. This
stand cannot be taken by the DPI or by State, as on the date of appointment
of writ petitioner i.e. on 28.04.1997 there was a clear sanctioned vacancy in
terms of Go No. 1028 EDU(CS) dated 10.12.1996. Any subsequent
restructuring of the post by reduction of post or merger of post cannot take
away the right which accrued to the writ petitioner pursuant to the post
which was available on the date of her appointment i.e. 28.04.1997.
8. One more interesting fact which was pointed out by the learned
advocate appearing for the writ petitioner is that the management
themselves has reconciled to the fact that the communication dated
16.02.1999 from the DPI is not a rejection of the approval of the writ
petitioner and others. This is so because in the meeting of the governing
body held on 12.06.1999, it was resolved that all relevant papers sent earlier
to the DPI should be once again sent which includes the papers relating to
the writ petitioner Lipi Banerjee. When such is the factual position, the
management chose to make a summer sault by resolving to appoint Mr.
Motilal Barik in the post which on the date when he was appointed was not
vacant as the writ petitioner had already been accommodated in the said
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vacancy. Thus, it is evident that the management has left no stone unturned
only to harass the writ petitioner and to somehow negative her claim. This
attempt by the management continued even after the writ petition was filed
by converting the post and reserving the same for scheduled tribe
candidates. One more aspect which needs to be pointed out to show the
arbitrariness on the part of the DPI is that though several non-teaching staff
were appointed along with the writ petitioners pursuant to the decision of
the governing body dated 28.04.1997 except the writ petitioner, the other
appointment have been approved. In the earlier part of the order by way of
illustration the names of the four of such candidates whose appointment
were approved by DPI have been mentioned. Therefore, it is clear that DPI
has been inconsistent, selective and discriminatory for reasons best known.
It is not in dispute that those candidates who were appointed along with the
writ petitioners continue to function and their appointment were approved
as early as in the year 1999.
9. Thus, it is clear that the writ petitioner has been dealt with in a most
arbitrary and unfair manner not only by the management but by the DPI as
well. The learned Single Bench was fully justified in observing that under
the pretext of the communication of the DPI dated 16.02.1999, the
management relied on a second purported resolution of the governing body
dated 28.08.1999,to steer the way for appointment of the private respondent
Motilal Barik (since retired) to the post of clerk vis Timir Guha Roy. Further
the learned Single Bench rightly observed that without giving reasons for
sub-planting the governing body resolution dated 28.04.1997 and the
recruitment process under taken on the platform of Go No. 1028 dated
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10.12.1996, the management placed a second proposal for approval of post
omitting the name of the writ petitioner. Further the observations of the
learned Writ Court that the second proposal was brazenly unfair to the right
of the writ petitioner to be approved is well justified. As rightly noted by the
learned Single Bench atleast after the retirement of Motilal Barik, the
management could have mend its ways by giving necessary relief to the writ
petitioner but chose not to do so and instead converted the post to be
reserved for scheduled tribes and initiating fresh recruitment process to the
said post.
10. Thus, the factual situation clearly shows that the action of the
management was wholly arbitrary and unsustainable and the decision taken
by DPI was without application of mind and the learned Single Bench was
fully justified in allowing the writ petition and the appellants have not made
out any case for interference with the said order. With regard to the cost
which had been imposed, since it is directed to be paid by the management,
if confirmed, would result in further harassment of the writ petitioner.
Therefore, we are inclined to interfere with that portion of the order passed
in the writ petition and accordingly the cost imposed on the management
stands deleted.
11. In the result, the appeals are dismissed and the order passed in the
writ petition is affirmed with direction to the appellants to approve the
appointment of the writ petitioner with effect from the date of her
appointment i.e. 28.04.1997 sanction all pay and allowance and
consequential monetary and other benefits accruable on such approval
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within the period of two months from the date of the receipt of the server
copy of this judgment. No costs.
(T.S. SIVAGNANAM, J)
I agree
(HIRANMAY BHATTACHARYYA, J)
(P.A - SACHIN)
Later:
After we pronounced the judgment dismissing the appeals, the learned
Advocates appearing for the appellant/management submitted that the
learned Single Bench has imposed cost of Rs.50,000/- on the management
payable to the writ petitioner and prays for waiving the said cost.
The writ petitioner, who is in Court also does not seriously object to such a
prayer.
Considering the fact that we have dismissed the appeals, the cost that was
directed to be paid, stands waived.
(T.S. SIVAGNANAM, J.)
I Agree.
(HIRANMAY BHATTACHARYYA, J.)
