Bhola Das & Ors vs The State Of West Bengal & Ors
2023 Latest Caselaw 4697 Cal

    6
 CT. No. 15
03.08.2023
  adeb




                                   W.P.A. 29048 of 2014

                                   Bhola Das & Ors.
                                          Vs.
                               The State of West Bengal & Ors.

                    Mr. Prosenjit Mukherjee
                    Mr. Arghya Kamal Das

                                           ....for the petitioners
                    Mr. Tapan Kr. Mukherjee
                    Ms. Tuli Sinha
                                             ...for the State

                    Mr. Tapas Kr. Ghosh
                    Mr. Tanmoy Chowdhury
                                      ..for the respondent nos. 6 & 7

Twenty eight writ petitions are before this Court with

the present writ petition, inter alia, challenging the order of

the Principal Secretary, Municipal Affairs Department

being respondent no. 2 whereby claim of the petitioners to

be absorbed as staff of Hooghly-Chinsurah Municipality

has been negated on certain grounds as delineated therein.

Petitioners moved writ petition being WPA 24843 of

2013 ( Bhola Das & Ors. Vs. State of West Bengal & Ors.)

which was disposed of by a coordinate Bench vide order

dated 7th October, 2013 directing the respondent no. 2 to

take decision on the claim of the petitioners seeking

regularization upon according post facto approval.

Pursuant to the said order dated 7th October, 2013

respondent no. 2 passed order after hearing the parties on

29th January, 2014 whereby prayer of the petitioners has

been spurned.

Petitioners in pursuit of obtaining necessary

direction for their absorption upon according post facto

approval relied upon by the State Government order being

Memo No. 162/MA/O/C-9/2A-1/2010 dated 23rd April,

2010 before the coordinate Bench and it was also

contended that the claim of the petitioners was

recommended by the concerned authority of the

municipality, therefore, benefit of such Government Memo

dated 23rd April, 2010 needs to be extended in favour of the

petitioners. While considering the issue of extending the

benefit of Government Order dated 23rd April, 2010 the

respondent no. 2 found it fit not to grant relief to the

petitioners on the score that the petitioners were engaged

on casual basis in 1992 onwards without the nod of the

State Government. Therefore, according to the respondent

no. 2 in absence of such nod of the State Government

petitioners could not have been substantively approved in

their respective posts.

The learned advocate representing the petitioners

while advancing argument has placed reliance on Section

54(3) of the West Bengal Municipal Act, 1993 which

prescribes requirement of prior approval of the State

Government in the matter of appointment by the

municipality in respect of the posts excluded under sub-

Section (1) of Section 54. It has also been contended that

requirement of approval of the State Government in the

matter of appointment under Section 54 (3) has been

introduced vide amendment with effect from 1st October,

2003; therefore the requirement of approval of the State-

Government in the matter of appointment of the petitioners

was not necessary since they were appointed prior to

aforesaid amendment. In support of such contention

reliance has been placed on the judgment of the Hon'ble

Division Bench dated 11th January, 2019 passed on MAT

1619 of 2016 ( The State of West Bengal and Ors. Vs.

Tapas Chakraborty and Ors.).

The learned advocate representing Hooghly-

Chinsurah Municipality supports the contention of the

petitioners and has also submitted that the case of the

petitioners was duly recommended by the concerned

authority of the municipality at the material point of time

for their absorption. However, such recommendation was

not considered by the concerned authority of State

Government for granting relief to the petitioners.

Mr. Tapan Kr. Mukherjee, learned Additional

Government Pleader appears for the State-respondents who

has defended the decision of the respondent no. 2 dated

29th January, 2014. It has been submitted by Mr.

Mukherjee that even Court proceeds on the premise that

considering the date of appointment of the petitioners

prescription of the statute under Section 54 (3) may not

come into play but Section 54 (3A) would apply in case of

the petitioners. It has been submitted that if recruitment is

not made on the recommendation of the West Bengal

Municipal Service Commission the municipality is required

to publish open advertisement for the purpose of

recruitment or through such other method as the State

Government may determine from time to time. Since in the

present case requirement under Section 54(3A) has not

been complied with the claim of the petitioners cannot be

acceded to.

Having heard the learned advocates representing the

parties and on perusal of the decision taken by the

respondent no. 2 dated 29th January, 2014 it appears that

the case of the petitioners to extend the benefit of

Government Order dated 23rd April, 2010 has been rejected

not on application of the provision of Section 54(3A) rather

the purport of the impugned order reveals that the

respondent no. 2 proceeded on the premise that the

requirement as contemplated under Section 54(3) has not

been complied with since it has been recorded in the

impugned order that there is no approval of the State

Government while engaging the petitioners in the year

1992 onwards. While considering the issue as involved in

this writ petition this Court is required to take into

consideration the fact that prescription of statute to the

extent of requirement of prior approval of the State-

Government at the time of recruitment was brought in by

way of amendment with effect from 1st October, 2003

whereas petitioners were appointed much prior to the date

of amendment.

In this regard reliance is placed on Tapas

Chakraborty (supra), in paragraph 7 identical issue has

been dealt with by the Hon'ble Division Bench that

requirement of prior approval of the State Government at

the time of appointment was subsequently inserted by way

of amendment with effect from 1st October, 2003. I find

substance in the contention of the petitioners that on the

ground of requirement of prior approval of the State

Government, in consideration of the dates of engagement of

the petitioners, the respondent no. 2 ought not to have

negated the claim of the petitioners since such requirement

was brought in by way of an amendment with effect from

1st October, 2003.

Mr. Mukherjee has made feeble attempt to justify the

order of the respondent no. 2 on the strength of the

provision as contained under Section 54(3A) of 1993 Act

since petitioners were not appointed by publishing

advertisement in the year 1992 onwards. However, such

argument transpires to be made in desperation since

respondent no. 2 while negating the claim of the petitioners

did not make any observation based on requirement of

observance of the provisions under Section 54(3A).

In view of aforesaid scenario the impugned order of

the respondent no. 2 dated 29th January, 2014 stands set

aside.

The Principal Secretary, Municipal Affairs

Department is directed to revisit the issue and pass a

reasoned order on the claim of the petitioners seeking grant

of post facto approval in consideration of their respective

dates of appointment taking into account the

recommendation made by the concerned authority of

Hooghly-Chinsurah Municipality within a period of 12

(twelve) weeks from the date of communication of the order.

Before taking such decision petitioners or their one

representative as well as representative of Hooghly-

Chinsurah Municipality shall be granted opportunity of

being heard. Respondent no. 2 is also directed that while

taking such decision not to consider the absence of prior

approval of the State Government at the time of

appointment of the petitioners since the same is not the

relevant consideration in view of the observations made by

this Court in the preceding paragraphs. The decision to be

taken by the respondent no. 2 shall be communicated to

the parties within 2 (two) weeks thereafter.

With the aforesaid directions, the writ petition stands

disposed of.

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.)