Officio Additional Secretary vs Anindita Das & Ors
2023 Latest Caselaw 7088 Cal

13.10.2023
Item No.19
Court No.6.
 S. De
                                 MAT 1804 of 2023
                                        With
                               I.A. No. CAN/1/2023
                               I.A. No. CAN/2/2023

                The Director of Local Bodies, West Bengal & Ex-
                         Officio Additional Secretary.
                                      Vs.
                              Anindita Das & Ors.

                    Mr. Subhrangsu Panda,
                    Ms. Ina Bhattacharyya,
                    Ms. Mithu Singha Mahapatra,
                                     ...for the appellant.

                    Mr. Mainak Gangully,
                                      ...for the respondent

nos. 2, 3.

Mr. Arunava Ghosh, Mr. Anant Kr. Shaw, ...for the respondent/writ petitioner no.1 Mr. Rajarshi Basu, Mr. S.T. Mina, ...for the State/respondent no.5.

By consent of the parties the appeal and the

connected applications are taken up together for

hearing.

In re : I.A. No. CAN/2/2023 (Section 5)

This is an application for condonation of delay of

562 days in filing the appeal. Causes shown being

sufficient, the delay is condoned.

I.A. No. CAN 2 of 2023 is, accordingly, disposed

of.

In re : MAT 1804 of 2023 & I.A. No. CAN/1/2023

This appeal is directed against a judgment and

order dated November 23, 2021, whereby the writ

petition of the respondent no.1 herein being WPA

No.15882 of 2017 and two connected applications

being CAN 1 of 2018 and CAN 2 of 2020 were disposed

of by a learned Single Judge of this Court.

The writ petitioner is a casual employee in

Garulia Municipality. She is a teacher. She wanted to

participate as an in-house candidate in a recruitment

process initiated by Garulia Municipality. However,

because she had crossed the age limit, her application

was not accepted. She approached this Court by filing

the present writ petition being W.P. 15882(W) of 2017.

By an interim order dated June 20, 2017, a

learned Single Judge of this Court permitted her to

participate in the recruitment process subject to

certain conditions. The relevant portion of that order

reads as follows :-

"By way of an interim measure, this Court directs the concerned authority to accept the application of the petitioner without insisting for the age limit indicated in the employment notice and if the said application is found otherwise in order shall permit the petitioner to sit in the recruitment examination but shall not declare the result until further order that may be passed in the instant writ petition.

The participation in the recruitment process shall not create any special equity in favour of the petitioner and always be subject to the result of the writ petition."

The petitioner participated in the recruitment

process which was initiated in 2017. Although the

recruitment process was finalized, the result was not

published because of the interim order which we have

extracted above. The Municipality filed an application

for modification of the interim order being CAN 1 of

2018 (Old No. CAN 8538 of 2018) praying for

permission to publish the result of the recruitment

process.

By the judgment and order dated November 23,

2021 which is impugned in the present appeal, the

learned Single Judge disposed of that application as

also the writ petition. The relevant portion of the

impugned order reads as follows :-

"Having heard the learned Advocates for the respective parties, this Court grants such leave to the municipality to publish the result. The candidature of the petitioner shall be considered on the basis of the merit list. It is submitted by the municipality as also the other respondents that they do not have any objection to the finalisation of the recruitment process and they shall also not insist on the age bar prescribed in the recruitment notice in case the

petitioner fulfils the other eligibility criteria and has been successful in the selection process. The petitioner has been discharging her duty for almost 20 years in the municipality on casual basis. If the petitioner has the requisite qualification, the age bar can be condoned and the municipality is willing to do the same in view of the several decisions of this court. Resolution to that effect has also been adopted by the municipality.

As the recruitment process was pending in view of the order passed in the writ petition, it is expected that the entire recruitment process shall be completed within a period of two weeks from date."

The Director of Local Bodies, Municipal Affairs

Department, who is the present appellant, filed an

application for review of the learned Single Judge's

judgment and order dated November 23, 2021. The

learned Judge disposed of such review application by a

judgment and order dated November 24, 2022 with the

following observations :

"Today, a review has been sought on the ground that before the order of this court was passed, the West Bengal Municipal Service Commission Act, 2018 had already come into force and all recruitments were to be done in terms of the said Act. Although this court is of the

view that the recruitment process which was initiated in 2017 and which continued at the time when the new Act had not come into force should be guided by the previous rules and regulations, the court deems it fit not to venture into an adjudication of this issue which is beyond the scope of the writ petition. I do not find any ground for review.

It is not a case of error apparent on the face of the record. It is also not a case where a settled principle of law has not been followed. Finally, it is not a case in which the applicant was not aware of the existence of the Act of 2018 when the writ petition was disposed of. The municipality had completed the process on the basis of the 2017 advertisement. Final result was not published due to pendency of the writ petition. The employer had decided to condone the age limit for an in house candidate.

The learned advocate for the State respondents did not raise any objection at the relevant point of time. It is presumed that the learned advocate was conscious that a recruitment process which was initiated in 2017, could not be cancelled by restrospective application of a subsequent statute.

If the promulgation of the 2018 Act and the prohibition therein is a ground for review, in that case not only the selection of the petitioner but the entire selection

process becomes invalid and the other candidates who were selected would suffer consequences. They are also not before the court."

Being unsuccessful in the review application,

the Director of Local Bodies has come up by way of

this appeal against the learned Judge's original

judgment and order dated November 23, 2021.

The sole point urged by learned advocate for the

appellant before us is that upon the West Bengal

Municipal (Second amendment) Act, 2018 coming into

force in January 2019, the Director of Local Bodies

ceased to have anything to do with recruitment of the

municipal employees and lost the power even to

approve appointment of municipal employees. This is

because Section 54(3A) of the West Bengal Municipal

Act, 1993 and Section 55 of that Act were amended to

read as follows :

"54(3A) : The recruitment to the posts

not required to be made through the

West Bengal Municipal Service

Commission constituted under sub-

section (1) of Section 3 of the West

Bengal Municipal Service Commission

Act, 2018, shall be made through the

open advertisement or through such

other method as the State Government

may determine from time to time"

The amended Section 55 reads as follows :-

"55. The West Bengal Municipal

Service Commission constituted under

sub-section (1) of Section 3 of the West

Bengal Municipal Service Commission

Act, 2018, shall select such personnel

for the municipalities as may be

prescribed by the State Government,

and it shall be binding on the

Municipality to appoint the personnel

selected by the said Commission"

We are of the considered opinion that the

appellant is suffering from a gross misconception.

Firstly, a recruitment process which was initiated in

2017 and which was completed prior to the West

Bengal Municipal (Second Amendment) Act, 2018,

coming into force, cannot be in any manner affected by

the provisions of that Amendment Act. The result of

the recruitment process was withheld in view of the

interim order of a learned Judge of this Court.

However, it is not in dispute that the process was

completed prior to the 2018 Amendment Act coming

into force. It is established law that any amendment

will have to be taken to be prospective in nature

unless it is made retrospective expressly or by

necessary implication. We find no intention of the

legislature in the present case to make the 2018

Amendment Act retrospective. The language of the

amendment is also very clear and indicates that the

amended provisions will have effect in futuro. Hence,

in our considered view, the provisions of the 2018

Amendment Act in no manner affect the recruitment

process that was initiated in 2017.

Secondly, it appears that by the 2018

Amendment, the Municipal Service Commission was

only entrusted with the duty of preparing a panel of

candidates for the purpose of recruitment. The

appointment still has to be made by the Municipality

concerned which would necessarily mean that the

Municipality would have to obtain the approval of the

Director of Local Bodies. Hence, we are not in

agreement with learned advocate for the appellant that

the appellant has no power to grant approval. We are

at a loss to understand as to why the appellant is

desperate to abdicate the power which he has

according to us.

We find no merit in this appeal at all. The result

of the recruitment process has now been published.

Learned advocate for the Municipality tells us that the

writ petitioner has been successful in the recruitment

process and her name has found place in the panel. It

will be up to the Municipality to grant appointment to

the writ petitioner in accordance with law and if, for

that purpose, the Municipality approaches the

Director of Local Bodies for approval, such approval

will be forthwith granted by the Director of Local

Bodies.

MAT 1804 of 2023 is disposed of along with the

application being I.A. No. CAN 1 of 2023.

Urgent certified photostat copy of this order, if

applied for, shall be given to the parties as

expeditiously as possible on compliance with all the

necessary formalities.

(Arijit Banerjee, J.)

(Apurba Sinha Ray, J.)