Calcutta High Court (Appellete Side)
The State Of West Bengal & Ors vs Debdas Saha & Ors on 20 July, 2023
D/L
Item No. 23
20.07.2023
KOLE
MAT 1775 of 2022
The State of West Bengal & Ors.
-Vs.-
Debdas Saha & Ors.
Mr. Tapan Kr. Mukherjee, Sr. Adv.
Mr. Pinaki Dhole,
Mr. T. Sinha,
... for the appellants.
Mr. Partha Sarkar,
Mr. Abhijit Basu,
... for the respondent/writ petitioner.
Mr. Dipankar Mondal,
... for the Municipality.
The respondent no. 1/writ petitioner was appointed as
a casual employee in Chakdaha Municipality in the year
1988. In 1996, he was absorbed in a sanctioned vacant post,
in terms of G. O. No. 103/MA/O/C-9/M2A-13/94 dated
March 19, 1996. The said memo reads as follows:-
"WHEREAS it was brought to the notice of
the Govt. that some municipalities resorted
to engagement of Casual Workers in spite of
Govt. decision restricting engagement of
such workers, which was reiterated from
time to time by issue of Circulars;
AND WHEREAS for sometime past the
question of absorption of Casual and such
other Categories of Workers engaged as
such from time to time in different
municipalities has been under the active
consideration of the Govt;
NOW THEREFORE, after careful
consideration and in continuation of para 2
of this, Department Order No. 50/MA/O/C-
9/2A-17/95 dated 02.05.95 the Governor is
further pleased to determine in accordance
with the provisions is further pleased to
determine in accordance with the
provisions of Sub-section 3(A) of Section 54
of the West Bengal Municipal Act, 1993
(West Bengal Act XXII of 1993) that duly
qualified Casual Workers who were
engaged by different municipalities upto
31.12.1991 and are still continuing as such
will be eligible for absorption in the duly
sanctioned vacant Group 'C' posts within
the approved staffing patters of the
municipalities strictly on the basis of
seniority and with prior approval of the
Board of Councillors subject to the
fulfillment of other terms and conditions
laid down under the Labour Deptt. Memo
No. 100-EMP/1M-17/79(Pt) dated 13.03.96
read with Memo Nos. 1700 EMP of 3.8.79
and 1650 EMP dated 28.8.80."
The Board of Councillors of the Municipality
recommended the name of the writ petitioner to the
Directorate of Local Bodies for according approval. No such
approval was accorded.
In the year 2014, the writ petitioner had approached
this Court by filing WP No. 20716(W) of 2014 for a direction
upon the authorities to disburse ad hoc pension in his favour
since he had retired by that time. By an order dated July 24,
2014, a learned Single Judge disposed of the writ petition.
The operative portion of the said order reads as follows:-
"__Accordingly, the Principal Secretary,
Department of Municipal Affairs, Kolkata,
the respondent no. 1 is directed to consider
the matter with regard to grant of ad hoc
pension by passing a reasoned order within
six weeks from the date of presentation of a
copy of the certified copy of this order after
giving an opportunity of hearing to the
petitioner and to a representative of the
Chakdaha Municipality and after having
the records and documents, including the
certificate appearing at page 25 of the writ
petition and after considering the
notifications appearing at pages 58 and 59
of the writ petition and other notifications,
if any. If it is found that the petitioner is
entitled to pension, the respondent no. 1
shall issue appropriate directions forthwith
thereafter in accordance with law. It is,
however, made clear that I have not gone
into the merits of the matter and all points
are left open to be dealt with by the
respondent no. 1."
Pursuant to such order, the Principal Secretary to
Government of West Bengal passed a reasoned order which
was communicated to the writ petitioner under cover of a
letter dated February 17, 2015. The writ petitioner's claim
was rejected.
The last paragraph of the said reasoned order reads as
follows:-
"Hence, as the petitioner was absorbed by
the Municipality in terms of Govt. Order
No. 103/MA/O/C-9/M2A-13/96 dated 10-
03-1996 and Memo No. 292/DLB/C-3/3
GM-2/92(119) dated 22-01-1997 subject to
the fulfillment of terms and conditions laid
down under the Labour Department's
Memo No. 100-EMP dated 28-08-1980
which are not in effect as per Chief
Secretary's aforesaid order dated 02-12-
2009, so any other order for
regularization/approval of service etc. shall
not take effect."
Challenging the aforesaid order of the Principal
Secretary, the writ petitioner approached the learned Single
Judge in the present round of litigation. By the judgment
and order dated November 15, 2019, impugned in this
appeal, the learned Judge allowed the writ petition. The
operative portion of the impugned order reads as follows:
"In view of the foregoing discussion made
above I allow the Writ Petition by quashing
the impugned undated order being
annexure 'P-16' to the writ petition and
direct the Director of Local Bodies,
Government of West Bengal/respondent no.
4 to grant post facto approval to the
appointment of the writ petitioner from the
date of his absorption in the respondent
Municipality in the sanctioned post as a
"Ledger Clerk" by the resolution of the
Board of Councillors of the Municipality
dated 01.07.1996, as per Government order
no. 207/MA/O/C-4/1A/2000 dated 7th May,
2009 and Government order no.
422/MA/O/C-4/1A/2000 dated 19th August,
2009 issued by the Government of West
Bengal, Department of Municipal Affairs
and direct the respondent authorities
concerned to make payment of all post
retiral benefits including pension to him as
of a permanent employee of the
respondent/Municipality. The whole
exercise of approval and payment of all
such post retiral dues to the petitioner must
be completed by the respondents concerned
within 12 weeks from the date of
communication of this order. In case of
default in making payment of all post
retiral dues within the aforesaid stipulated
period respondents shall pay the same with
interest to the petitioner at the rate of 6%
from the date of retirement till the date of
actual payment of such arrears."
Being aggrieved, the State of West Bengal has come
up in appeal before us.
Learned Advocate for the respondent/writ petitioner
pointed out at the very outset that the order of the learned
Single Judge has been carried out. In terms of that order,
the Government accorded post-facto approval to the
absorption of the writ petitioner in the sanctioned vacant
post and consequently disbursed the pensionary benefits to
the writ petitioner. After complying with the order, the
present appeal has been preferred against that order.
Mr. Dhole, learned Advocate, representing the
appellant says that the learned Single Judge's order was
implemented under threat of contempt. There are legal
points to be considered in the appeal. The memo of 1996 is
not applicable to the writ petitioner.
We are of the opinion that this appeal is really not
maintainable inasmuch as it has been filed after the order of
the learned Single Judge has been given effect to by the
appellants. This court is not inclined to carry out an
academic exercise. All points of law that learned Advocate
for the State would like to urge may be done so in some other
appropriate proceedings.
The appeal is, thus, disposed of.
Urgent photostat certified copy of this order be
supplied to the parties, if applied for, as early as possible.
(Arijit Banerjee, J.)
(Apurba Sinha Ray, J.)
