Calcutta High Court (Appellete Side)
Swapna Das (Pradhan) vs The State Of West Bengal & Anr on 28 July, 2023
28.07.2023
Item no.8.
Court No.6.
AB
M.A.T. 1577 of 2018
With
CAN 1 of 2019
(Old CAN 505 of 2019)
Swapna Das (Pradhan)
Vs
The State of West Bengal & Anr.
Mr. Milan Chandra Bhattacharya, Sr. Adv,
Mr. Tapan Kr. Jana,
Ms. Sulagna Bhattacharya....for the Appellant.
Mr. Shamim Ul Bari,
Ms. Tanuja Basak ....for the State.
By consent of the parties, the appeal and the
connected application are taken up for hearing
together.
A judgment and order dated December 3, 2018,
whereby the appellant's writ petition being W. P.
No.19491 (W) of 2009 was dismissed by a learned
Single Judge, is under challenge in this appeal.
The appellant/writ petitioner was appointed as
Samprasarika in a Madhyamik Siksha Kendra (MSK)
on April 9, 2005. The appointment was initially for a
period of one year. The appellant's service contract
was renewed from year to year. Her contract was
terminated by the Executive Officer of the concerned
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Panchayet Samity by issuing a letter dated July 7,
2008.
In an earlier round of litigation, the appellant
had approached a learned Single Judge of this Court
in the writ jurisdiction by filing two writ petitions being
W. P. No.28065 (W) of 2008 and W. P. No.4513 (W) of
2008, challenging the order of termination of her
service by the letter dated July 7, 2008, issued by the
Executive Officer of the Ramnagar I Panchayet Samity
and also for an order for release of her remuneration.
The said two writ petitions were disposed of by a
common judgment and order dated August 3, 2009
with the following direction:
"Accordingly, in disposing of the present writ
petition, direction is given to the Principal Secretary,
Department of Panchayat and Rural Development, Govt. of
West Bengal to consider the prayer of the writ petitioner
for cancellation of the impugned orders whereby her
service was terminated, as well as her prayer for
reinstatement of her service, treating the writ petition as
her representation. In taking a reasoned decision,
opportunity is to be extended to the writ petitioner as well
as to other selected candidates, if any, to vindicate their
respective stands by producing relevant documents in their
favour. The reasoned decision is required to be taken
within two months of the communication of the order.
Principal Secretary is also to consider where the post
reserved for female candidate can be converted into a
general post."
Pursuant to the aforesaid order, the Principal
Secretary to the Government of West Bengal passed an
order dated October 26, 2009, after hearing the
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concerned parties including the appellant, rejecting
the representation of the appellant.
In the present round of litigation, the appellant
challenged the aforesaid order of the Principal
Secretary dated October 26, 2009, as also the order
dated July 7, 2008, that was passed by the Executive
Officer of the Ramnagar I Panchayet Samity, before the
learned Single Judge.
The learned Judge noted that the records reveal
that the writ petitioner was the wife of a person who
was a Saha Sabhadhipati of the concerned Panchayet
at the time of initial appointment of the writ petitioner.
The learned Judge noticed various circulars and came
to the conclusion that being a near relation of an office
holder in a Panchayet Samity, the writ petitioner could
not have been appointed. It was held that the writ
petitioner could not claim any right on the basis of an
illegal appointment. Hence, the writ petition was
dismissed. The writ petitioner has come up in appeal
before us.
We have heard Mr. Milan Chandra
Bhattacharya, learned Senior Advocate appearing for
the appellant and Mr. Bari, learned Advocate
appearing for the State, at some length.
Mr. Bhattacharya, learned Senior Counsel
appearing for the appellant has argued that as on the
date of the initial appointment of the appellant i.e.,
4
April 9, 2005, there was no restriction on appointing
the appellant as Samprasarika in spite of her husband
being an office bearer in Ramnagar I Panchayet
Samity. In support of such submission, learned Senior
Counsel referred to a memo dated February 15, 2005,
issued by the OSD and Ex-Officio Deputy Secretary to
the Government of West Bengal, addressed to the
Additional Mission Director, Paschim Banga Rajya
Shishu Shiksha Mission. The said circular reads as
follows:
"Sir,
In inviting reference to your Memo No.1435/ Mission-
97/2005 dated 14.01.05 on the subject mentioned above, I
am directed to state that the issue of near relation in the
Panchayat Bodies may be ignored for the present though
there should not be any compromise on qualification."
Learned Counsel then argued that as per the
relevant Government Circulars, each MSK must have
at least one lady Samprasarak. He submitted on
instruction that in the concerned MSK, there was no
lady Samprasarika. Hence, it was incumbent on the
respondents to continue the appointment of the
appellant.
Referring to the letter of termination of the
appellant's service dated July 7, 2008, Mr.
Bhattacharya submitted that the Executive Officer of
Ramnagar I Panchayet Samity was not the competent
authority to issue the letter of termination.
Learned Senior Counsel then submitted that the
Circulars that the State is seeking to rely upon, all
came into existence after the initial appointment of the
appellant. Such Circulars cannot be given
retrospective effect and cannot be made applicable to
the appellant. In support of this contention, learned
Senior Counsel relied on a decision of the Hon'ble
Supreme Court in the case of P. Mahendran &
Others Vs State of Karnataka & Others reported in
AIR 1990 SC 405. In particular, learned Counsel
relied on the following observations of the Supreme
Court -
"............The amended Rule could not affect the
existing rights of those candidates who were being
considered for selection as they possessed the requisite
qualifications prescribed by the Rules before its
amendment moreover construction of amending Rules
should be made in a reasonable manner to avoid
unnecessary hardship to those who have no control over
the subject matter."
Appearing for the State, Mr. Shamim Ul Bari,
learned Advocate drew our attention to a Government
Circular dated November 7, 2005, which was obviously
in supersession of the earlier Circular dated February
15, 2005. The November Circular reads as follows:
"Sir,
In inviting a reference to your memo
No.355/MSK16D/05 dated 13.09.2005 on the subject
mentioned above, I am directed to state that a member of a
Panchayat Body or his/her near relation cannot be
engaged as Samprasarak/Samprasarika of an MSK and if
any Samprasarak/Samprasarika is subsequently elected
to any PR Body he/she may continue to work as such but
will draw remuneration from one place only. This
clarification has been issued earlier vide this Department's
memo No.5764-PN/O/ I/4P-3/2002 dated 04.10.2005 to
Zilla/Mahakuma Parishad."
Learned Advocate also drew our attention to a
Government Order dated October 4, 2006, which reads
as follows:
"A question has been raised as to whether a
Panchayat member can be engaged as Samprasarak/
Samprasarika of a Madhyamik Siksha Kendra.
It is hereby clarified that a member of a Panchayat
Body or his/her near relation cannot be engaged as
Samprasarak/Samprasarika of a MSK. However, if any
Samprasarak/Samprasarika is subsequently elected to
any PR Body he/she may continue to work as such but
will draw remuneration from one place only.
The Panchayat Bodies within the district may
please be informed suitably. "
Our attention has also been drawn to yet
another Circular dated May 2, 2008, the relevant
portion whereof reads as follows:
"Whereas it has been clarified vide this
Department's memo No.6104-PN/O/I/0-3/2004 dated
07.11.2005 that 'a member of a Panchayat Body or his/her
near relation cannot be engaged as Samprasarak/
Samprasarika of an MSK and if any Samprasarak/
Samprasarika is subsequently elected to any PR Body
he/she may continue to work as such but will draw
remuneration from one place only' and
Whereas it is felt expedient to modify the above and
clarifications issued from time to time regarding
engagement of members of Panchayati Raj Bodies and
their near relation as Samprasarak/Samprasarika, it is
hereby ordered that there is no bar to engage any near
relation of any member of Panchayati Raj Body as
Samprasarak/Samprasarika of an MSK except the near
relation of the office bearers of Panchayati Raj Body i.e.
Chairpersons/Members of various Standing Committee/
Upa-Samitis. If any Samprasarak/Samprasarika is
subsequently elected to any PR Body he/she may continue
to work as such but will draw remuneration from one
place only and if he/she is nominated as one of the office
bearers of the Panchayati Raj Body he cannot continue
his/her work as Samprasarak/Samprasarika".
Learned Advocate submitted that it is not in
dispute that the husband of the appellant was an
office bearer of the concerned Panchayet Samity at the
relevant point of time. Hence, although the initial
appointment of the appellant may not have been
irregular or illegal by reason of the Circular dated
February 15, 2005, her appointment could not be
renewed or she could not be re-appointed in the
following years because of the restriction imposed by
the Government Order dated November 7, 2005 and
subsequent Circulars. Even the Circular dated May 2,
2008, providing some degree of relaxation would not
come to the aid of the appellant since near relation of
an office bearer of a Panchayet Samity could not have
been appointed as a Samprasarika as per the May
2008 Circular.
Learned Advocate then referred to a Govt.
Circular dated October 27, 2006, which provided that
if an issue arises as regards termination of the service
of a Samprasarika, the same shall be looked into by
the concerned Siksha Sathi Samity of the concerned
Panchayet Samity and the Executive Officer of the
Panchayet Samity shall implement the decision of the
Siksha Sathi Samity. In the present case, this
procedure has been followed. The Executive Officer
issued the termination letter dated July 7, 2008, in
implementation of the decision of Siksha Sathi Samity.
Hence, it cannot be said that the termination letter is
without authority.
We have carefully considered the rival
contentions of the parties.
We agree with Mr. Bhattacharya to the extent
that the initial appointment of the appellant may not
have been prohibited by the Government Circulars as
would appear from the Circular dated February 15,
2005, which was in force as on the date of the
appointment of the appellant i.e. April 9, 2005.
However, by the time her appointment came to be
renewed in 2006, the Government Circular dated
November 7, 2005 had come into force. As per that
Circular, the appellant could not have been re-
appointed or her contract could not have been
renewed. Likewise, for the subsequent years, by
reason of the Government Order dated October 4,
2006, which has been extracted above, the appellant's
service contract could not have been renewed or she
could not have been re-appointed. Hence, the
conclusion reached by the learned Single Judge is
correct.
Regarding the appellant's point that her service
could not have been terminated because she was the
only lady Samprasarika in the concerned MSK and her
service should have been continued, we find no merit
in this point. The relevant Circular merely says that if
a MSK does not have a lady Samprasarak, then if a
fresh appointment of a Samprasarak is being made, a
lady should be appointed. That Circular has no
manner of application in the facts of the present case.
As regards the point of the Executive Officer of
the Ramnagar I Panchayet Samity lacking authority to
issue the termination letter, we are unable to accept
such contention. As has been pointed out by Mr. Bari,
under the relevant Circulars/Notifications/
Government Orders, the Siksha Sathi Samity of the
concerned Panchayet Samity is the authority to look
into the issue of termination of service contract of a
Samprasarika. That was done in this case as would
appear from the termination letter dated July 7, 2008.
The letter was issued by the Executive Officer of the
concerned Panchayet Samity merely giving effect to the
decision of Siksha Sathi Samity. In our view, the
procedure laid down by the concerned Circulars has
been duly followed.
As regards the point that no retrospective effect
can be given to the Circulars on which the State
Government seeks to rely, we are of the view that this
point also has no merit since no retrospective effect is
being sought to be given to any of the Circulars in the
present case. The restriction on appointing a lady as
Samprasarika, whose husband is an office bearer in
the concerned Panchayet Samity, came in November,
2005. That surely could not affect the initial
appointment of the appellant in April 2005 since, as
correctly contended by Mr. Bhattacharya, such
Circulars cannot be given retrospective effect.
However, at the time of renewal of the service contract
of the appellant or her reappointment in 2006, the
restriction had come into force by way of a
Government Circular dated November 7, 2005. This
was subsequently clarified by the Government Order
dated October 4, 2006. Hence, the appointment of the
appellant as Samprasarika could not have been
renewed after expiry of one year from the date of her
initial appointment. No retrospective effect to any of
the concerned Circulars has been given in the instant
case. Hence, the decision of the Hon'ble Suprme Court
relied upon by the learned Senior Counsel would not
have any manner of application to the facts of the
present case.
In view of the aforesaid, we are of the opinion
that there is no merit in the appeal.
MAT 1577 of 2018 stands dismissed along with
CAN 505 of 2019 without any order as to costs.
Urgent photostat certified copy of this order, if
applied for, be supplied expeditiously after compliance
with all the necessary formalities.
(Arijit Banerjee, J.)
(Apurba Sinha Ray, J.)
