Calcutta High Court (Appellete Side)
Bina Kader vs The State Of West Bengal & Ors on 15 December, 2023
Author: Arijit Banerjee
Bench: Arijit Banerjee
D/L
Item No. 04
15.12.2023
KOLE
MAT 2312 of 2023
With
IA CAN 1 of 2023
Bina Kader
-Vs.-
The State of West Bengal & Ors.
Mr. Samarandra Nath Biswas,
... for the appellant.
Mr. Priyankar Saha,
Mr. Rudrajit Sarkar,
... for the State.
Affidavit of service filed in Court today be kept with
the records. In spite of receiving notice, the Jiaganj
Azimganj Municipality (in short 'the Municipality') is not
represented.
By consent of the appearing parties, the appeal and
the connected application are taken up for hearing together.
A judgment and order dated September 29, 2023,
passed by a learned Single Judge of this Court on the
appellant's writ petition being WPA 6757 of 2023, is the
subject matter of challenge in this appeal.
The appellant's husband was serving in the post of
Drain Cleaner in the Municipality. He passed away while in
harness in June 2015 after completing almost 23 years of
service. After his death, his wife, the appellant herein, was
permitted by the Municipality to serve in the aforesaid post
which her husband held, as a full time Drain Cleaner of the
Municipality. The appellant is being paid a monthly
remuneration of Rs. 5,000/- since 2015.
2
The appellant had earlier approached a learned Judge
of this Court by filing WPA 18332 of 2021 which was
disposed of by an order dated January 15, 2022 by observing
that if the Municipality decides to fill up the post in
accordance with law, then the writ petitioner (appellant
herein) shall be allowed an opportunity of participating in
the selection process upon condoning the age bar, if she is
otherwise eligible and is working continuously since 2015 till
the date of recruitment.
Thereafter the Municipality did not take any steps for
filling up vacant posts including the post in which the
appellant is serving.
In the present round of litigation, the appellant
approached the learned Single Judge complaining that the
Municipality is not taking steps for filling up the vacant
sanctioned posts. It was submitted that it is practically
impossible to survive on a paltry remuneration of Rs.
5,000/- per month. The writ petitioner relied on the
observation of the Hon'ble Apex Court in the case of State
of Karnataka Ors.-vs.-Uma Devi, reported in (2006) 4
SCC 1, to the effect that if sanctioned posts are vacant the
State shall take immediate steps for filling up those posts by
initiating regular process of selection.
It was submitted on behalf of the Municipality that
the Municipality does not have the funds to make regular
engagement. The Director of Local Bodies has not taken any
steps for appointment.
3
The learned Judge disposed of the writ petition with
the following observations and directions:-
"The petitioner has submitted that she is
serving as a casual employee since 2016 at
a paltry remuneration of Rs. 5,000/- only
per month. Admittedly, there are various
sanctioned posts that are vacant as on date.
It is highly improper for the Municipality to
get work done by engaging casual
employees in full time service.
Since the work performed by the petitioner
is of permanent nature, the Municipality
ought to take steps for filling up the vacant
sanctioned posts.
Though it is not for the court to issue writ of
Mandamus compelling the Municipality to
initiate recruitment process, but at the same
time the Court cannot keep its eyes shut to
the submission made by the petitioner that
she is being exploited to perform regular
fill-time work upon payment of Rs. 5,000/-
only per month for years together.
In view of the above, the instant writ
petition is disposed of by directing the
Municipality to take steps for initiating
regular selection process for filling up the
vacant sanctioned post (s) in accordance
with the directions passed by the Hon'ble
Supreme Court in the matter of Umadevi &
Ors (supra)."
The writ petitioner has come up by way of this appeal
only because no time period has been indicated by the
learned Single Judge within which the recruitment process is
to be completed. Learned Advocate for the appellant says
that the appellant is in dire conditions. Rs. 5,000/- per
month is just not enough to make both ends meet. Hence,
the sanctioned vacant posts including the post in which the
appellant is serving should be filled up following due process
of law at the earliest.
4
We have heard Learned Advocate for the State, who
says that it is for the Municipality to take appropriate steps
in the matter.
It is indeed next to impossible to survive with any
degree of dignity on a monthly salary of Rs. 5,000/-. The
appellant is discharging whole time duties since 2015. It is
not a part time job. The appellant is discharging the duty
that her husband used to discharge as a full time regular
employee. She is compelled to render this service as it is a
question of her survival. However, given the present price
indices and the cost of living, we reiterate that one cannot
possibly survive on a salary of Rs. 5,000/- per month. This
is nothing but exploitation. Right to life guaranteed under
Article 21 of the Constitution of India includes the right to
live with dignity. It does not contemplate mere existence.
We agree with the learned Single Judge that in a
situation like the present one, the Writ Court must, in order
to do substantive justice, issue appropriate directions. The
learned Judge has issued such direction. We only clarify
that the process for filling up the vacant sanctioned post(s)
in accordance with law, and the directions passed by the
Hon'ble Apex Court in the case of Umadevi (supra) be
initiated and completed by the Municipality after obtaining
immediate permission from the Director of Local Bodies,
within six months from the date of communication of this
order by the appellant to the Chairperson of the said
Municipality.
5
We clarify that we are not issuing any mandamus to
absorb the appellant. The appellant will only be entitled to
participate in the recruitment process condoning any age
bar. Only if she is successful in such process, she will be
absorbed.
Since we have not called for affidavits, the allegations
made in the stay application are deemed not to be admitted
by the respondents.
The appeal and the connected application are,
accordingly, disposed of.
Urgent photostat certified copy of this order be
supplied to the parties, if applied for, as early as possible.
(Arijit Banerjee, J.)
(M. V. Muralidaran, J.)
