Calcutta High Court (Appellete Side)
Sri Kartick Chandra Barik vs State Of West Bengal & Ors on 4 March, 2022
W.P.A. 29339 of 2014
08 04.03.2022
Ct.15
(IA NO: CAN 1/2020 (Old No: CAN 2766/2020)
rkd
(Through Video Conference)
Sri Kartick Chandra Barik
-vs-
State of West Bengal & Ors.
Mr. Siddharta Bannerjee,
Mr. Kuna Ganguly,
Mr. Tirupati Mukharjee
....for the petitioner.
Mr. Basudeb Gayen
....for the Municipality.
Mr. Pinaki Dhole
....for the State.
The writ petition pertains to regularization
of service of the petitioner who was working as
Driver initially on no work no pay basis with effect
from 9th October, 1987 and subsequently, on
temporary basis with effect from 1st of November,
1988.
It has been contended on behalf of the
petitioner by Mr. Banerjee, learned advocate that
on being appointed temporarily as driver with effect
from 1st of November, 1988 his pay was fixed in
regular scale as it appears from page 35 of the writ
petition. Thereafter on utilization the service of the
petitioner as driver from 1988 increment and usual
allowances were abruptly stopped on and from
March, 2010.
2
Being aggrieved by such alleged
unreasonable steps taken by the respondent
authorities petitioner approached the Baidyabati
Municipality for redressal of his grievance which
could not yield any result as a result whereof the
first writ petition being W.P. 13380(W) of 2014 was
triggered. Same was disposed of vide order dated
15th May, 2014 by a coordinate Bench with a
direction upon the Director of Local Bodies,
Government of West Bengal, being the respondent
no.4 to pass a reasoned order on the claim of the
petitioner for regularization as driver.
Pursuant thereto the respondent no.4 took
up the issue and passed order on 8th September,
2014 whereby the prayer of the petitioner for
regularization was spurned. Such order dated 8th
September, 2014 is the subject matter of challenge
in the present writ petition.
It has been contended on behalf of the
petitioner that since the pay of the petitioner was
fixed in regular scale vide order of the Chairman of
the Municipality on 3rd November, 1988 with effect
from 1st November, 1988 by this time petitioner
ought to have been regularized. In addition thereto,
reliance has been placed on another order of the
coordinate Bench passed on the writ petition being
W.P. 18863(W) of 2007 preferred by another
similarly circumstanced candidate whereupon the
coordinate Bench granted relief to the petitioner in
W.P. 18863(W) of 2007. Therefore it has been
strenuously prayed before this Court that similar
relief should be granted to the petitioner in the
present writ petition.
During course of hearing notice of this
Court has been drawn to Memoranda dated 15th
December, 2003 as well as 8th March, 2005
whereby appointment of some of the casual
employees working in Baidyabati Municipality were
approved in terms of the direction of the Governor
being Pre'92 Casual Workers. Therefore it has
strenuously been contended on behalf of the
petitioner that the petitioner herein being Pre'92
Casual Worker should be accorded appointment
upon regularization of his service.
Mr. Gayen, learned advocate appears on
behalf of the Baidyabati Municipality and Mr.
Dhole, learned advocate appears on behalf of the
State respondents including the Director of Local
Bodies, Government of West Bengal who have
jointly made submissions thereby both of them
have defended the impugned decision of the
respondent no.4. It has been submitted on behalf of
the respondent authorities that since the petitioner
was initially appointed on no work no pay basis
and, subsequently, on casual basis therefore he
has no right of regularization specially when such
appointment was not made against the sanctioned
post and at the time of appointment of the
petitioner the procedure which was required to be
followed in terms of the settled norms was not
complied with.
This Court has heard the learned advocates
representing the petitioner as well as respondent
authorities and has also perused the relevant
documents available on record. On perusal of the
reasoned decision of the respondent no.4, it
appears that before taking such decision the
contention of the Municipal Authority was taken
care of and thereby the respondent no.4 made a
specific finding that the petitioner was not
appointed against the sanctioned post following the
recruitment rules. In addition thereto, allowances
and the increments of the petitioner was stopped in
2010. Furthermore, it was also mentioned in the
order of the respondent no.4 that the Circulars
dated 13th August, 1979, 28th August, 1980 and
13th March, 1996 of Labour Department which
were issued for regularization/absorption of casual
appointees or ad-hoc appointees were directed not
to be given effect to pursuant to the Memo dated
2nd December, 2009 being No.1518/SIW issued by
the Chief Secretary, Government of West Bengal
and such Memo dated 2nd December, 2009 was
issued pursuant to the order of the Hon'ble
Division Bench dated 24th August, 2009 passed on
a writ petition being W.P.S.T. 483/2009
(Rabindranath Ghosh & Ors. -vs- State of West
Bengal). Therefore the respondent no.4 ultimately
decided against the claim of the petitioner and the
prayer for regularization/absorption was refused.
This Court has perused the order dated
26th June, 2013 passed by a coordinate Bench on
W.P. 18863(W) of 2007 which might have been
passed, as it appears, without considering the
order of the Hon'ble Division Bench dated 24th
August, 2009 passed on W.P.S.T. 483 of 2009.
Petitioner has also relied upon Memoranda
dated 15th December, 2003 as well as 8th March,
2005 whereby approval was granted in favour of
some of the similarly circumstanced Pre'92 Casual
Workers but this Memorandum in the present case
cannot be given any credence in view of the
decision of the Hon'ble Division Bench dated 24th
August, 2009 passed on the writ petition being
W.P.S.T. 483 of 2009.
Since it appears from record that the writ
petitioner was not appointed against the sanctioned
post without following relevant recruitment rules at
the material point of time, no enforceable right
accrues in favour of the petitioner which can be
protected by issuance of Mandamus. In this regard
reliance has been placed on the judgment of the
Apex Court, report in 2006 Vol. 4 SCC 1 (State of
Karnataka -vs- Uma Devi). Accordingly, this Court
does not find any merit in the writ petition and the
same stands dismissed.
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.)
