Calcutta High Court (Appellete Side)
Matter : Fma vs Status : Do on 18 May, 2022
18.05.2022 FMA 1391 of 2015
Court : 04 Aparna Mondal (Saha) & Anr.
Item : PB-01
Matter : FMA Vs.
Status : DO
Transcriber: nandy The State of West Bengal & Ors.
Mr. N.G. Mukherjee, Advocate
Ms. Kaushikee Chakraborty, Advocate
......For the Appellants
Ms. Chaitali Bhattacharya, Advocate
Mr. Subhendu Roychowdhury, Advocate
......for the State
Mr. Sarwan Jahan, Advocate
Ms. Mousumi Mitra, Advocate
......for the Respondent No. 2
Ms. Anindita Banerjee, Advocate
......for the Respondent No. 9(b)
The instant appeal has arisen from a judgment
and order dated July 24, 2014 passed by the learned
single Jude in WP 13609 (W) of 2012 by which the
writ-petition filed by the appellants was dismissed.
The appellants/writ-petitioners claimed to have
been engaged as Sahayikas in the SSK since 2001
and 2003 respectively. The grievance raised in the
writ-petition pertains to re-engagement as well as
non-release of honorarium on and from 2004. The
single Bench noticed the order dated April 16, 2012
of the District Nodal Officer, SSK & MSK,
Murshidabad, wherein the said officer upon
considering the enquiry report of the Assistant
Coordinator (Education), Murshidabad Zilla Parishad
and other relevant documents arrived at the
conclusion that the petitioners were not engaged as
Sahayikas in the said SSK and such engagement
was contrary to the said norms and procedure
prescribed therefor. The single Bench was, therefore,
of the opinion that once the engagement was found
to be invalid having made without following the
norms and procedure applicable in this regard no
relief can be granted to the writ-petitioners.
Our attention is drawn to the decision of the
District Nodal Officer issued on April 16, 2012
wherein the said office arrived at the conclusion
taking into account the Government Order No.
4696/PNB/0/1/48-3/02 dated September 18, 2006
issued by the P & RD Department, Government of
West Bengal. According to the said District Nodal
Officer since the said Government Order indicates
the exhaustive provision required for the engagement
and if the same has not been adhered to, such
engagement cannot be held to be valid.
As indicated above, the petitioners were
engaged in the year 2001 to 2003 respectively prior
to the issuance of the said Government Order. It has
been fairly conceded by the learned Counsels for the
State as well as the Zilla Parishad that prior to the
said Government Order there was no Government
Order which was in vogue providing exhaustive
provisions relating to the procedures and norms to be
adopted for engagement of Sahayikas. All the
Sahayikas, four in numbers, engaged in the said
SSK have been appointed following the uniform
procedures adopted prior to the said Government
Order and, therefore, we do not find any justification
in declaring the engagement of the appellants as
invalid. In absence of any express indication in the
Government Order to operate retrospectively, such
Government Order ordinarily operates prospectively
and engagement made thereafter, if any, has not
been done strictly in adherence to the procedures
and norms provided therein shall be rendered invalid.
The engagement which was done prior in time,
cannot be declared invalid merely on the basis of the
subsequent Government Order which do not have
the retrospective operation. Furthermore, two of the
Sahayikas engaged in the said SSK are still working
and if their appointment was on the basis of the
same norms and procedures which was the basis of
the appointment of the appellants and the same is
allowed to be continued treating the same to have
been validly made, the decision of the District Nodal
Officer is discriminatory and, therefore, falls within
the mischief of Article 14 of the Constitution.
It is relevant to record that enquiry was
conducted by the Block Nodal Officer and the report
was submitted on April 12, 2010 indicating the
engagement of four Sahayikas including the
appellants and, therefore, the stand of the authority
that the communication received from the competent
authority does not reveal the names of the appellants
is untenable.
The order of the District Nodal Officer dated
April 16, 2012 is quashed and set aside.
Since the SSK has now being controlled and
regulated by the concerned Municipality i.e. the
Domkal Municipality, we direct the said Municipality
to re-engage the appellants in the said SSK within
fortnight from date and if any further formalities are
required for such re-engagement, the concerned
authorities are further directed to take steps
accordingly.
It appears from the said report of the Block
Nodal Officer that on April 12, 2010, the petitioners
were engaged in the said SSK there is no document
forthcoming that the honorarium has been paid to the
appellants since 2004.
We, therefore, direct the concerned
Municipality to pay the honorarium to the Sahayikas
as a special case for the period the appellants have
actually worked in the said SSK and within a month
from the date of communication of this order. The
said order shall not be treated as precedence.
With these observations, the appeal being FMA
1391 of 2015 is disposed of.
(Harish Tandon, J.)
(Rabindranath Samanta, J.)
