Calcutta High Court (Appellete Side)
Md. Sarifuddin vs The State Of West Bengal & Ors on 17 May, 2022
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IN THE HIGH COURT AT CALCUTTA
(Constitutional Writ Jurisdiction)
APPELLATE SIDE
Present:
The Hon'ble Justice Krishna Rao
WPA 8494 of 2020
Md. Sarifuddin
Versus
The State of West Bengal & Ors.
Mr. Subir Sanyal
Ms. Sumouli Sarkar
.....For the Petitioner
Ms. Chaitali Bhattacharya
Mr. Suvendu Roychowdhury
.....For the Resp. No. 10
WPA 8405 of 2020
Humayun Kabir
Versus
The State of West Bengal & Ors.
Mr. Subir Sanyal
Ms. Sumouli Sarkar
.....For the Petitioner
Ms. Chaitali Bhattacharya
Mr. Suvendu Roychowdhury
.....For the Resp. No. 10
Heard on : 11.03.2022
Judgment on : 17.05.2022
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Krishna Rao, J.: In bot writ petitions, the petitioners have prayed for grant
of benefits in terms of the Government Orders dt. 16.09.2011, 20.05.2013,
25.02.2016 and 08.02.2019 read with Government Order dt. 28.02.2019.
In W.P.A No. 8494 of 2020 (Md. Sarifuddin -vs- The State of West
Bengal), the Block Development Officer Murarai-I Block had invited
applications from eligible candidates for engagement on contractual basis of
coordinator for block Lokshiksha Samiti. The petitioner had applied for the
said post and accordingly, the petitioner was selected for the post of
Coordinator of Murarai-I Block under Sakshar Bharat Mission on contract
basis at Rs. 6,000/- per month vide letter dt. 09.01.2012. The petitioner had
reported duty on 10.01.2012. After the engagement of the petitioner as
Block Coordinator, the appointment of the petitioner was extended from
time to time.
The writ petitioner in WPA No. 8405 of 2020 namely, Humayun Kabir
was engaged as Block Coordinator of Nalhati-I Development Block and has
reported his duty on 21.06.2011 and the appointment of the petitioner was
extended from time to time.
The Audit Branch of Finance Department of the Government of West
Bengal had issued a Memorandum No. 9008-F(P) dt. 16.09.2011 wherein it
is mentioned that, 'after careful consideration of the matter and in
supersession of Memorandum no. 2966-F(P) dt. 23.04.2010 and
Memorandum no. 11794-F(P) dt. 22.12.2010 and all other orders issued by
the departments in the matter, the undersigned is directed by order of the
Governor to say that the casual/daily rated/contractual workers who are
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remaining attached to the various establishments of the Government
Department/Directorates/Regional Offices/other organizations for not less
than 10 years continuously as on 01.08.2011 and have rendered service for
at least 240 days each year will be allowed with the benefits as mentioned in
the said Memorandum.
On 20.05.2013 the Finance Department of Government of West
Bengal had issued a Memorandum No. 4011-F(P) wherein it is mentioned
that;
"After careful consideration of the matter and in modification of Memo
No. 9008-F(P) dt. 16.09.2011, the undersigned is directed by order of the
Governor to say that the Governor has not been pleased to enhance the
remuneration of the Casual/Daily Rated/Contractual Workers as follows:-
"Casual/Daily Rated/Contractual Workers
In Group 'D' category
Less than 10 years Rs. 7,000/- p.m.
More than 10 years Rs. 8,500/- p.m.
In Group 'C' category
Less than 10 years Rs. 8,500/- p.m.
More than 10 years Rs. 11,000/- p.m.
The number of years of engagement will be determined as on 01.04.2013. All
other terms and conditions will same as in Finance Department's Memo No.
9008-F(P), dated 16th September, 2011.
This order will be effective from 01.05.2013."
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On 06.12.2013 the Panchayat and Rural Development, Government of
West Bengal had issued an order vide no. 6077-RD-Block/5M-7/2011(Pt.I)
wherein the remuneration of the Casual/Daily Rated/Contractual Workers
who have remain engaged in Block Offices/District Head Quarters and
Regional Offices against any sanctioned post under the Department, the
monthly salary has been enhanced as follows with effect from 01.05.2013:-
Sl. No. Period of engagement Gr. C Gr. D
i. Less than 10 years Rs. 8,500/- p.m. Rs. 7,000/- p.m.
ii. More than 10 years Rs. 11,000/- p.m. Rs. 8,500/- p.m.
2. The number of years engagement is to be determined as on 1.4.2013.
3. All concerned are being informed accordingly. In each case the
provisions of Memorandum No. 9008-F(P) dated 16.9.2011 of Finance Deptt
(Audit Br.), Govt. of West Bengal shall have to be strictly followed.
4. This order is issued in pursuance of Finance Department, (Audit
Branch) Memorandum No. 4011-F(P), Dt. 2005.2013.
On 25.02.2013 the Finance Department of Government of West
Bengal had issued a Memorandum No. 1107-F(P) dt. 25.02.2016 wherein
the consolidated monthly remuneration of contractual/casual/daily rated
workers have been revised as follows:
Group D
Period of engagement Present Proposed
Less than 5 years Rs. 7,000/- Rs. 10,000/-
5-10 years Rs. 7,000/- Rs. 12,000/-
10-15 years Rs. 8,500/- Rs. 14,500/-
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15-20 years Rs. 8,500/- Rs. 17,000/-
More than 20 years Rs. 8,500/- Rs. 20,000/-
Group C
Period of engagement Present Proposed
Less than 5 years Rs. 8,500/- Rs. 11,500/-
5-10 years Rs. 8,500/- Rs. 13,500/-
10-15 years Rs. 11,000/- Rs. 16,000/-
15-20 years Rs. 11,000/- Rs. 19,000/-
More than 20 years Rs. 11,000/- Rs. 22,000/-
(iii) Enhance of remuneration : 5 % in every year
(iv) Terminal benefit of attaining : Rs. 2.00 lakh
The age of 60 years
(v) Medical benefit : All contractual/casual workers
and their families will be covered
under a health insurance
coverage upto Rs. 1.50 Lakh for
secondary and tertiary illness
and Rs. 5 lakh for critical illness.
The petitioners have submitted their representation to the concern
authorities praying for grant of monthly remuneration as per the order no.
1107-F(P) dt. 25.02.2016 but inspite of receipt of the representation, the
request of the petitioners were not considered.
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On 08.02.2019 again a Memorandum No. 1033-F(P) was issued
wherein the remuneration of Casual/Daily Rated/Contractual Workers have
been revised as follows with effect from 01.02.2019:-
"Group - 'D'
Period of engagement Existing remuneration Revised remuneration
Less than 5 years ₹ 10,000/- ₹ 12,000/-
5 to less than 10 years ₹ 12,000/- ₹ 14,000/-
10 to less than 15 years ₹ 14,500/- ₹ 16,500/-
15 to less than 20 years ₹ 17,000/- ₹ 19,000/-
20 years and above ₹ 20,000/- ₹ 22,000/-
Group - 'C'
Period of engagement Existing remuneration Revised remuneration
Less than 5 years ₹ 11,500/- ₹ 13,500/-
5 to less than 10 years ₹ 13,500/- ₹ 15,500/-
10 to less than 15 years ₹ 16,000/- ₹ 18,000/-
15 to less than 20 years ₹ 19,000/- ₹ 21,000/-
20 years and above ₹ 22,500/- ₹ 24,500/-
(ii) With effect from 1th February, 2019 such workers, on attaining the
age of 60 (sixty) years, will be entitled to one time terminal benefit of ₹
3.00 Lakh in placed of existing ₹ 2.00 lakh.
(iii) The above categories of Group-'D' Workers, who possess
educational qualification of Madhyamik Pass or above and have been in
engagement continuously for more than 3 (three) years will be given the
benefit of engagement as Contractual/Casual/Daily rated Group- 'C'
Workers from the prospective date subject to availability of vacancy in
the Group- 'C' Workers from the prospective date subject to availability
of vacancy in the Group- 'C' Category. While allowing this benefit the
existing remuneration of an individual worker in Group-'D' Category
shall be protected.
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Such exercise shall be made by the respective Appointing Authority
after obtaining approval of the concerned Administrative Department.
(iv) Tenure of engagement, yearly enhancement of remuneration,
Medical benefit and Leave facility of such workers shall be guided by
the provisions of Memo. No. 1107-F(P) dated 25.02.2016 as usual."
Though the engagement of the petitioners as Contractual Worker was
extended from time to time and accordingly, the petitioners have made
representation to the concern authorities for enhancement of the monthly
salary in terms of the revised memorandums issued by the Government
from time to time but the request of the petitioners were not considered. On
27.09.2019, the District Magistrate, Birbhum had sent a proposal to the
Joint Secretary, Government of West Bengal, Panchayats and Rural
Development Department with the request for enhancement of Financial and
other benefits of Casual Workers who were engaged against vacancies of the
sanctioned posts prior to 01.04.2010 in the said letter the District
Magistrate had sent the name of the following persons:-
Sl. No Name Name of the Block Date of engagement Engaged as
1. Brindaban Chatterjee Mayureswar-II 27-12-2001 Gr.D
2. Sumanta Chakraborty Illambazar 22.01.2010 Gr.C (TC)
3. Deb Prasad Saha Bolpur-Sriniketan 01.9.2008 Gr.C (CCT)
4. Mrityunjoy Das Dubrajpur 13.5.2009 Gr.C (CCT)
5. Tapas Bitter DP & RDO, Birbhum 27-01-2010 Gr.D
On 21.11.2019, the Joint Secretary to the Government of West
Bengal, Panchayats and Rural Development Department had issued an
order wherein one Shri Deb Prasad Saha, who was engaged as Casual Clerk-
cum-Typist, his remuneration was enhanced to Rs. 16,000/- per month but
the respondents have failed to consider the request of the petitioners for
enhancement of their salary. The petitioners have applied under the Right
to Information Act, vide application dt. 26.02.2020 and in reply to the
information sought for by the petitioners, the respondents have provided the
information along with detail information of Block Coordinators as on
31.03.2018.
Mr. Subir Sanyal, Ld. Counsel representing the petitioners submitted
that the petitioners were engaged as Coordinator and the petitioners have
joined their respective duty. Since then the petitioners are performing their
duty and the engagement of the petitioners were extended from time to time.
It is further submitted that though the petitioners were granted monthly
remuneration of Rs. 6,000/- as the case of the petitioner is not covered
under the Memorandum dt. 16.09.2011. Subsequently when the
Memorandum dt. 16.09.2011 was modified vide Memorandum dt.
28.05.2013 the petitioners were covered under the said Memorandum and
as such the petitioners are entitled to get the monthly remuneration of Rs.
7,000/- per month. The Counsel for the petitioner further submitted that in
terms of the Memorandum dt. 25.02.2016, the petitioners are entitled to get
the monthly remuneration of Rs. 10,000/- per month. The Counsel for the
petitioner further submitted that in terms of the Memorandum dt.
08.02.2019, the petitioners are entitled to get Rs. 14,000/- per month.,
The Counsel for the petitioner brought to the notice of this Court in
respect of the letter dt. 27.09.2019 wherein the District Magistrate had
forwarded the names of five persons namely, Brindaban Chatterjee,
Sumanta Chakraborty, Deb Prasad Saha, Mrityunjoy Das and Tapas Bitter
for enhancement of financial and other benefits. Against the name of the
said persons, the District Magistrate had indicated the date of engagement
wherein it reveals that Sumanta Chakraborty was engaged on 22.01.2010,
Mrityunjoy Das was engaged on 13.05.2009 and Deb Prasad Saha was
engaged on 01.09.2008. The Ld. Counsel for the petitioners have drawn the
attention of the documents obtained under Right to Information Act which is
annexed to the writ petition as P-19 in W.P.A No. 8494 of 2020 and also
annexed with another writ petitions in which the date of engagement of
Mrityunjoy Das is reflected as 26.02.2015, date of engagement of Deb
Prasad Das is mentioned as 09.02.2011 and the date of engagement of
Sumanta Chakraborty is mentioned as 14.11.2011.
By pointing out the date of engagement of the private respondents, the
Counsel for the petitioner submitted that only to debar the petitioner for
getting the financial benefit and to give the benefit to the private
respondents, the authorities have shown wrong date of engagement in the
letter dt. 27.09.2018.
The Counsel for the petitioner submitted that as per the Memorandum
issued by the authorities from time to time, the petitioners are entitled to get
the enhanced financial benefit as till date the petitioners are working as
contractual employee under the respondents.
The Counsel for the petitioner further submitted that the respondents
have filed an affidavit-in-opposition except in WPA No. 8496 of 2020 but
have not specifically denied the statement made by the petitioners in writ
application. The petitioners relied upon the judgment reported in (2001) 2
CLJ 135, Para 2 and 3 and submitted that the respondents have not
specifically denied the statement made by the petitioner and only an evasive
denial was made and some of the writ petitions, respondents have not filed
affidavit-in-opposition as such it may be taken as admitted by the
respondents. The Counsel for the petitioner has relied upon the judgment
reported in (2004) 1 CHN 571, Para 14.4 and submitted that the principle of
non-traverse is duly applicable in the instant case as the respondents have
not specifically denied the contention made by the petitioner. The petitioner
had further relied upon the judgment reported in AIR 2011 SC 1989 Para
65-69 and submitted that the respondents have discriminated by not
granting the revised pay to the petitioner though the respondents have
granted benefit to the other employees i.e. the private respondents who have
been engaged either in 2011 or 2015.
Per Contra, Ld. Counsels representing the respondents submitted that
the writ petition filed by the petitioners are not maintainable as the
petitioners were engaged as Coordinator contractually purely on temporary
basis on a monthly payment of Rs. 6,000/- with respect of the scheme and
the said scheme expired in the year 2018 itself. The Counsel for the
respondents further submitted that the petitioners were engaged as Block
Coordinator on different dates and they continued till 31.03.2018 and
thereafter their services were not extended. The Counsel for the
respondents further submitted that the petitioners were engaged as
Contractual Worker under the Sakshar Bharat Mission which is Central
Government sponsored scheme and the said scheme was ended on
31.03.2018. The Counsel for the respondents further submitted that the
petitioners were not appointed against any sanctioned post. The
respondents further submitted that the benefit of the Government Order as
claimed by the petitioners is not applicable to the petitioners.
Considered the rival submissions of respective parties and the
documents available on record. The petitioners were engaged as Block
Coordinator under Sakshar Bharat Mission contractually on a monthly
salary of Rs. 6,000/- per month initially for specified period. It reveals from
record that the contractual periods of the petitioners were extended from
time to time and the same was duly certified by the Block Development
Officer. The petitioners were performing their duty as Block Coordinator. It
also reveals from record that the petitioners were assigned the duty with the
several authorities like Literacy Programme, entry of RHS number on
Abridge House list CT and ET wise and their biometric enumeration,
counting of votes during general panchayat election etc. The petitioners
were appointed on a monthly salary of Rs. 6,000/-. As per Memorandum dt.
28.05.2013 the monthly salary was enhanced from Rs. 6,000/- to Rs.
7,000/- per month, who are having less than 10 years of service and
subsequently in the year 2016, the same was enhanced from Rs. 7,000/- to
Rs. 10,000/- who were having less than 5 years service and Rs. 7,000/- to
Rs. 12,000/- who were having 5-10 years of service. As per the
Memorandum issued by the Government of West Bengal, the petitioners
time and again requested for enhancement of their monthly salary and the
concern authorities have also forwarded the same to the competent
authority but the same was not granted. On 08.02.2019 the Government of
West Bengal had again enhanced/revised the consolidated remuneration of
Casual/Daily Rated/Contractual Workers from Rs. 12,000/- to Rs. 14,000/-
who were having more than 5 years of service but less than 10 years of
service. For the said category also the petitioners have applied for the same
but the case of the petitioners were not considered. The District Magistrate
vide letter dt. 27.09.2019 had forwarded the name of five persons for
enhancement of financial and other benefits but the District Magistrate,
Birbhum has not forwarded the name of the petitioners.
The petitioners have obtained document under Right to Information
Act and from the said document it appears that out of the five persons, 3
persons namely, Sumanta Chakraborty had joined the duty on 09.02.2011,
Mrityunjoy Das joined his duty on 26.02.2015 and Deb Prasad Saha joined
his duty on 09.02.2011 but while forwarding the name for enhancement of
financial and other benefits the date of engagement is mentioned as
27.01.2010, 01.09.2008 and 30.05.2009 which is contrary to the
documents provided to the petitioner and reveals that the said persons who
are the private respondent in the instant case have been engaged in the year
2011 only wherein the petitioners were also engaged in the year 2011.
The Judgment relied by the petitioners reported in (2011) SC 1989
para 65 to 69 which reads as follows:-
"DISCRIMINATION:
65. We also have to consider the submissions made on behalf of
the respondent No. 1 that the denial of allotment to major sons of
agricultural land would amount to hostile discrimination as in earlier
cases, it had been granted.
66. Unequals cannot claim equality. In Madhu Kishwar & Ors. v.
State of Bihar & Ors., AIR 1996 SC 1864: (1996 AIR SCW 2178), it has
been held by this Court that every instance of discrimination does not
necessarily fall within the ambit of Article 14 of the Constitution.
67. Discrimination means an unjust, an unfair action in favour of
one and against another. It involves an element of intentional and
purposeful differentiation and further an element of unfavourable bias;
an unfair classification. Discrimination under Article 14 of the
Constitution must be conscious and not accidental discrimination that
arises from oversight which the State is ready to rectify. (Vide: Kathi
Raning Rawat v. State of Saurashtra, AIR 1952 SC 123: (1952 Cri LJ
805); and M/s Video Electronics Pvt. Ltd. & Anr. v. State of Punjab &
Anr., AIR 1990 SC 820).
68. However, in Vishundas Hundumal & Ors. v. State of Madhya
Pradesh & Ors. AIR 1981 SC 1636; and Eskayef Ltd. v. Collector of
Central Excise, (1990) 4 SCC 680, this Court held that when
discrimination is glaring, the State cannot take recourse to inadvertence
in its action resulting in discrimination. In a case where denial of equal
protection is complained of and the denial flows from such action and
has a direct impact on the fundamental rights of the complainant, a
constructive approach to remove the discrimination by putting the
complainant in the same position as others enjoying favourable
treatment by inadvertence of the State Authorities, is required.
69. The High Court while passing the order had given a much
wider interpretation to the R & R Policy making reference to the terms
as "bigger family" and the "large land owning family".
The Court while interpreting the provisions of a Statue, can
neither and nor subtract a word. The legal maxim "a verbis legis non
est recedendum" means from the words of law, there must be no
departure (See: S.P. Gupta & Ors. v. Union of India & Ors., AIR 1982 SC
149; P.K. Unni v. Nirmala industries & Ors., AIR 1990 SC 933; and
Commissioner of Income Tax of Kerala v. Tara Agencies, (2007): (AIR
2007 SC (Suppl) 725 SCW 5143)."
The said judgment is also squarely applicable in the instant case as
from the record it reveals that the private respondents were engaged along
with the petitioners in the year 2011 as per the documents provided by the
respondents to the petitioners under Right to Information Act but the
respondents have forwarded the name of the private respondents for grant of
financial and other benefits without considering the name of the petitioners.
The contention raised by the respondent that the scheme came to end
on 31.03.2018 and thereafter the service of the petitioner was not extended
is contrary to the documents available on record and the certificate issued
by the Block Development Officer and thus the stand taken by the
respondent is not sustainable.
In view of the above this Court is of the view that the petitioner in
WPA No. 8494 of 2020 was engaged on 10.01.2012 and the petitioner in
WPA No. 8405 of 2020 was engaged on 21.06.2011 and since then the
petitioners are continuously working as contractual worker and thus the
respondent are directed to grant the benefit of enhancement of financial and
other benefits in terms of the Memorandum dt. 28.05.2013, 06.12.2013,
25.02.2016 and 08.02.2019 to the petitioners within a period of four weeks
from the date of communication of this order.
WPA 8494 of 2020 and WPA 8405 of 2020 are thus allowed.
Parties shall be entitled to act on the basis of a server copy of the
Judgment and Order placed on the official website of the Court.
Urgent Xerox certified photocopies of this judgment, if applied for, be
given to the parties upon compliance of the requisite formalities.
(Krishna Rao, J.)
