Calcutta High Court (Appellete Side)
Sardar Necharul Haque vs State Of West Bengal & Ors on 13 February, 2023
Item No.13.
IN THE HIGH COURT OF JUDICATURE AT CALCUTTA
CIVIL APPELLATE JURISDICTION
APPELLATE SIDE
HEARD ON: 13.02.2023
DELIVERED ON: 13.02.2023
CORAM:
THE HON'BLE MR. JUSTICE T. S. SIVAGNANAM
AND
THE HON'BLE MR. JUSTICE HIRANMAY BHATTACHARYYA
FMA 818 of 2017
With
I.A. No.CAN 1 of 2016 (Old CAN 9068 of 2016)
Sardar Necharul Haque.
Vs.
State of West Bengal & ors.
Appearance:-
Mr. Soumitra Banerjee,
Mr. Sudhanshu Nath .... for the appellant.
Mr. Basabjit Banerjee ...... for the respondents.
JUDGMENT
(Judgment of the Court was delivered by T.S. SIVAGNANAM, J.)
1. This intra Court appeal by the writ petitioner is directed
against the order dated 4th July, 2016 passed in W.P. No.9107(W)
of 2015. The appellant had filed the writ petition to consider
his representation dated 17th March, 2015 to provide him an
opening for joining under the West Bengal Power Development
Corporation Limited in regular establishment or to regularise
services of the appellant in the Bandel Thermal Power Station
Recreation Club under the West Bengal Power Development
Corporation Limited (for brevity, "the said Recreation Club").
The learned Single Bench by the impugned order took note of the
letter of appointment issued to the appellant, signed by the
General Secretary of the said Recreation Club and that there is
no pleading in the writ petition that the said Recreation Club
is an authority within the meaning of Article 12 of the
Constitution of India and therefore, the prayer for
regularisation cannot be entertained.
2. The learned Advocate appearing for the appellant would
vehemently contend that the said finding recorded by the learned
Writ Court is factually incorrect and in paragraph 8 of the
affidavit filed in support of the writ petition, a specific
pleading has been made to the said effect. Furthermore, it is
contended that other similarly placed persons have been
regularised in the West Bengal Power Development Corporation
Limited and the appellant alone has been singled out.
3. We have heard the learned Advocate appearing for the
respondents on the above submissions.
4. Firstly, the order of appointment has been issued to the
appellant by the General Secretary of the said Recreation Club.
It is stated in the said letter of appointment dated 26th May,
1992 that the committee of the said Recreation Club resolved in
the executive committee meeting that the appellant, who is
working as a part time attendant in the said Recreation Club at
the relevant time be appointed as full time attendant with
effect from 1st May, 1992 by allowing the lowest ceiling of
minimum wages including the enhancement from time to time for
his every working days on "No work no pay" basis for the
interest of the said Recreation Club and other terms and
conditions of his service will remain unchanged.
5. The said Recreation Club undoubtedly will not qualify to
satisfy the definition of a "State" within the meaning of
Article 12 of the Constitution of India. Furthermore, the
letter of appointment has been issued pursuant to a decision
taken by the executive committee of the said Recreation Club and
the appointment was on daily wage basis and the order clearly
states that it will be on "No work no pay" basis. The
appellant, who is said to have worked for several decades and
still continues to discharge his duties in the said Recreation
Club. The appellant submitted representations requesting for
regularisation of the services either in the West Bengal Power
Development Corporation Limited or as a regular employee in the
said Recreation Club and first of such representations was given
on 28th June, 2012. This was followed by other representations
as well and the appellant sought for considering his
representation dated 17th March, 2015. The Secretary of the said
Recreation Club has also recommended and forwarded the
representation of the appellant to the respondent / West Bengal
Power Development Corporation Limited. With these facts, the
appellant sought for issuance of a writ of mandamus.
6. Firstly, we note that paragraph 8 of the affidavit filed in
support of the writ petition does not state in as many words
that the said Recreation Club will fall within the purview of
the definition of a "State" under Article 12 of the Constitution
of India. What they seek to plead is that the West Bengal Power
Development Corporation Limited would sanction funds in favour
of the said Recreation Club, which proves that they are part and
parcel of the West Bengal Power Development Corporation Limited.
7. In this regard, a proceedings sanctioning deficit grant for
the financial year 2013-2014 was referred to. The document
referred to and the pleadings of the appellant are self-serving.
Admittedly, as the name denotes it is a Recreation Club
consisting of an executive committee, who manages the affairs of
the said Recreation Club, in all probability, the Members of the
said Recreation Club may be employees of the West Bengal Power
Development Corporation Limited or a power plant. Thus, by
itself the said Recreation Club cannot be brought within the
definition of "State" under Article 12 of the Constitution of
India.
8. That apart, if the appellant pleads that he was in
continuous employment and there was a permanent post, those are
all issues, which are disputed questions of fact and by now the
law has been well-settled that in a writ proceeding, direction
to regularise the services cannot be granted and more so, in the
facts and circumstances of the case on hand.
9. Thus, we find that there are no grounds to interfere with
the order passed by the Learned Single Bench. Accordingly, the
appeal fails and is hereby dismissed.
10. There shall be no order as to costs.
11. Urgent photostat certified copy of this order, if applied
for, be furnished to the parties expeditiously upon compliance
of all legal formalities.
(T.S. SIVAGNANAM, J)
I agree,
(HIRANMAY BHATTACHARYYA, J.)
NAREN/PALLAB(AR.C)
