Prasanta Kumar Nath @ Prasanta ... vs The Director
2022 Latest Caselaw 6776 Cal

                       IN THE HIGH COURT AT CALCUTTA
                         Constitutional Writ Jurisdiction
                                 Appellate Side

Present :- Hon'ble Justice Amrita Sinha

                                WPA No. 17349 of 2021

                     Prasanta Kumar Nath @ Prasanta Nath
                                       Vs.
                    The Director, Directorate of Local Bodies,
                       Government of West Bengal & Ors.


For the writ petitioners   :-     Mr. Sabyasachi Chatterjee, Adv.
                                  Ms. Debolina Sarkar, Adv.
                                  Mr. Badrul Karim, Adv.
                                  Ms. Priyanka Paul, Adv.

For the State              :-     Mr. Ayan Banerjee, Adv.
                                  Ms. Debashree Dhamali, Adv.

For the Kamarhati
Municipality               :-     Ms. Chandrani Bhattacharya, Adv.
                                  Ms. Bhargabi Banerjee, Adv.

Hearing concluded on       :-     08.09.2022

Judgment on                :-     21.09.2022


Amrita Sinha, J.:-


        The petitioner is a retired employee of the Kamarhati Municipality. He retired

from service on attaining his normal age of superannuation on 31.01.2018. He has

approached this Court praying for a direction upon the respondent authorities to

pay his terminal dues as applicable to the Collecting Sarkar, the post from which

he retired.

The petitioner was appointed as Pump Attendant on 12.02.1981 and

thereafter his service was confirmed by the Board of Commissioners of the

Municipality. The petitioner was promoted to the post of Collecting Sarkar with

effect from 01.04.1995 as per the Resolution of the Board of Councillors adopted in

the meeting held on 22.02.1995. The promotion was to be confirmed after six

months of satisfactory service in the promoted post. The petitioner was due to

receive pay according to the scale of pay with other admissible allowances for the

post.

The Executive Officer, Kamarhati Municipality issued retirement notice in

favour of the petitioner intimating him that under the West Bengal Municipal

Employees' DCRB Rules, 2003 of the Bengal Municipal Act, 1932, he would retire

on 05.01.2018, and his retirement will be on and from 31.01.2018.

The service book of the petitioner mentions that the initial appointment of

the petitioner as Pump Attendant was against a vacant sanctioned post as per the

Bengal Municipal Act, 1932.

The grievance of the petitioner is that after retirement he was not paid the

terminal dues as applicable to the promotional post of Collecting Sarkar. The

petitioner is being paid terminal dues as applicable to the post of Pump Attendant,

i.e., the post in which he was initially appointed.

Being aggrieved by the act on the part of the respondent authorities in

paying terminal dues at the reduced rate, the petitioner filed a writ petition in this

Court. The said writ petition was disposed of granting liberty to the petitioner to

make representation before the Director of Local Bodies highlighting his

grievances. Pursuant to the said leave granted by the Court, representation was

filed and the same was considered.

The Director of Local Bodies passed a reasoned order rejecting the prayer of

the petitioner by observing that the promotion of the petitioner to the post of

Collecting Sarkar was made arbitrarily on pick and choose basis without

consideration of relevant rules and procedures. No prior/post facto approval of

appointment has been sought for or obtained from the Government as per Section

54(3) of the West Bengal Municipal Act, 1993, as amended. Board of Councillors is

not empowered by law to promote anybody without prior permission/approval

from the Government.

The reasoned order passed by the Director of Local Bodies is under challenge

in the present writ petition.

The petitioner relies upon an order dated 07.05.2009 issued by the

Department of Municipal Affairs mentioning that considerable number of

appointments/promotions were made in a number of municipalities against

sanctioned vacancies between the period 14.07.1994 to 15.10.2000. In the

absence of approval of the State Government, the retired employees were facing

difficulties in finalization of their pension cases. For quick disposal of all pending

cases, the Governor authorized the Director of Local Bodies to accord post facto

appointment/promotion made by the Municipalities against sanctioned vacancies,

on case to case basis, after due examination/enquiry.

The petitioner submits that as he was promoted to the post of Collecting

Sarkar in the period as mentioned in the aforesaid Government Order, accordingly,

he should get the benefit of the post facto approval in terms of the aforesaid

Government Order.

It has been contended that promotion was given to the petitioner in

accordance with the convention prevailing at the relevant point of time and the

petitioner served in the promotional post since the date of his promotion till the

date of his retirement.

It has been argued that as the petitioner rendered service and was given pay

as applicable to the promoted post, as such, the respondents are liable to pay the

terminal benefits in accordance with the promotional post.

In support of the aforesaid stand the petitioner relies upon an unreported

order dated 04.04.2022 passed by a coordinate Bench of this Court in WPA 20247

of 2018 (Prabir Kr. Roy -vs- The State of West Bengal & Ors.) in respect of a

retired employee of the Kamarhati Municipality directing the respondent

authorities to process and finalize the pension case of the petitioner taking into

account the promotion made and release retiral dues by according post facto

approval, if required.

It has been argued that the petitioner is similarly placed as that of Prabir

Kumar Roy (supra) and similar order may be passed in the present case.

Kamarhati Municipality has filed an affidavit wherein it has been mentioned

that the Municipality forwarded necessary documents to the office of the

respondent no. 1 for according post facto approval of the service of the employees.

Repeated correspondences were made by and between the Director of Local Bodies

and the Municipality over this issue. It has been mentioned that the Municipality

took utmost effort to ensure that the interest of the employees is protected.

In the communication dated 4th April, 2012 the Municipality intimated to the

Director of Local Bodies that promotion was given to fifty employees to the higher

post within the sanctioned strength for proper administration during the period

14.07.1994 to 15.10.2000. It has been submitted that even after thirteen long

years of correspondence, post facto approval has not been approved from the end

of the Director of Local Bodies. Out of fifty employees, six have already died and

twelve have retired from service.

At the relevant point of time the gradation list was not prepared and as per

convention, promotion was given. It is only after the Government Order was passed

on 07.05.2009 that the practice of preparing a proper gradation list was initiated.

The promotion list of the fifty employees made during the period from 1994 to

2000 was sent for approval to the Director of Local Bodies on repeated occasions.

It has been submitted that terminal benefits are released under the

instruction of the Director of Local Bodies and the Municipality cannot take a

decision in the matter independently.

Affidavit has been filed on behalf of the Department of Urban Development

and Municipal Affairs. The affidavit mentions that though the initial appointment

of the petitioner as Pump Attendant was approved, but the promotion of the

petitioner as Collecting Sarkar on and from 01.04.1995 has not been approved.

Before granting promotion to the petitioner, the Municipality did not obtain prior

approval.

The case records of the petitioner were duly examined in terms of the order

passed by this Court in the earlier writ petition filed by the petitioner and it was

concluded that the promotion of the petitioner was made arbitrarily on pick and

choose method without following the relevant recruitment rules and procedure and

as such the prayer of the petitioner for according post facto approval to the

promotional post has been rejected. It has been contended that the petitioner

failed to show that the promotion was made following the recruitment and

promotion rules.

It has been argued that the Government Order dated 07.05.2009,

subsequently amended by order dated 19.08.2009, deals with only

appointments/promotions made against sanctioned vacancies. As the petitioner

has failed to show that he was promoted against a vacant sanctioned post, as

such, he will not be benefitted by the aforesaid Government Orders.

Prayer has been made for dismissal of the writ petition.

I have heard the rival contentions made on behalf of both the parties. There

is no dispute with regard to the initial appointment of the petitioner in the post of

Pump Attendant. The service of the petitioner in the said post has duly been

approved and the petitioner is getting his terminal benefits as applicable to the

said post.

Dispute arose with regard to the promotion of the petitioner as

Collecting Sarkar on and from 01.04.1995. The fact that during that period of

time the Municipalities followed the convention of promoting persons for want

of a proper gradation list is evident from the Government Orders passed in the

year 2009. The Government Orders accept the fact that

appointments/promotions were made by number of Municipalities against

sanctioned vacancies without taking approval of the Government.

To resolve the issue, the Government by the aforesaid notifications,

made it clear that for quick disposal of all pending cases of retired employees,

the Director of Local Bodies was authorised to accord post facto approval of

appointments/ promotions made during the period 14.07.1994 to 15.10.2000.

The promotion of the petitioner was with effect from 01.04.1995, that is, within

the mischief period as mentioned in the aforesaid Government Orders.

The Municipality has disclosed before this Court that for proper

running of the administration during the aforesaid period, employees were

promoted to the higher posts within the sanctioned strength. The same implies

that the promotion of the petitioner was against a sanctioned vacancy.

The Municipality has also disclosed in the affidavit that the

promotion was given as per the usual practice at that relevant point of time. As

a regular gradation list was not in place, the Municipality followed the practice

of giving promotion to the next higher post if a vacancy existed within its

sanctioned strength.

No case has been made out by the department that promotion was

given to the petitioner by depriving an eligible candidate. None of the employees

have approached the authority with the allegation that the petitioner was given

the benefit of promotion by depriving his/ her legitimate claim. The Director of

Local Bodies simply presumed that 'pick and choose' method has been

adopted. The said authority failed to appreciate that the amended Government

Order dated 19.08.2009 mentions that approval of State Government will not

be required in cases where resolutions were adopted by the Board of

Councillors of the Municipalities for making appointments/ promotions against

the sanctioned vacant posts. Promotion of the petitioner was made as per the

resolution adopted by the Board of Councillors of the Municipality and

accordingly, the 'pick and choose' ground taken to reject the prayer of the

petitioner cannot be substantiated.

In the present case, resolution was duly adopted by the Board of

Councillors to promote the petitioner and the Municipality has asserted that

the promotion was against sanctioned vacancy. As such, the grounds taken for

rejecting the prayer of the petitioner are liable to be set aside.

The petitioner performed his duties in the promotional post for a

considerable period of time and despite repeated requests made by the

Municipality, the Government, for no plausible reason, failed to accord

approval to the promotion of the petitioner.

It will be highly unfair and unjust on the part of the Municipality to reject

the prayer of the petitioner for disbursing his terminal benefits as applicable to the

promotional post. It was the duty of the employer to cure the technical defects, if

any, to ensure that the retired employee do get the terminal dues without any

unnecessary harassment.

It is too late in the day to reject the prayer of the petitioner after the

Municipality extracted service from the petitioner in the promotional post for more

than two decades.

In Prabir Kr. Roy (supra), in a matter relating to the self same municipality,

the Court directed the respondent authorities to release the retiral dues of the

employee taking into account the promotion made in his favour.

The Hon'ble Supreme Court consistently held that terminal benefits are not

bounty and are valuable rights in the hands of the retired employees. The same is

recognition of the long satisfactory service rendered by the employee. The same

ought not to be refused or rejected on flimsy grounds.

In view of the above, this Court is of the opinion that the terminal benefits of

the petitioner as applicable to the promotional post cannot be rejected on technical

ground(s), that too, after the employee served in the promotional post for a

considerable period of time.

Remanding the matter back to the Director of Local Bodies for taking a fresh

decision in the matter will be a time consuming process. The petitioner has long

retired from service and he ought not to be kept waiting for so long for getting his

retirement benefits as per his proper scale of pay. As such, the writ petition is

disposed of by this Court in the following manner.

The respondent authorities are directed to finalize the terminal dues of the

petitioner in the promotional post and to issue revised Pension Payment Order in

his favour. For settling the terminal dues, the respondent authorities, if required,

shall issue post facto approval to the promotional post of the petitioner.

The revised Pension Payment Order shall be issued in favour of the

petitioner at the earliest, but positively within a period of four months from the

date of communication of this order and payment in terms of the revised PPO shall

be made immediately thereafter.

The impugned reasoned order of the Director of Local Bodies is set aside.

The writ petition stands disposed of.

No costs.

Urgent certified photocopy of this judgment, if applied for, be supplied to

the parties or their advocates on record expeditiously on compliance of usual

legal formalities.

(Amrita Sinha, J.)