Calcutta High Court (Appellete Side)
State Of West Bengal & Anr vs Dr. Saktilal Choudhury & Ors on 13 October, 2023
IN THE HIGH COURT AT CALCUTTA
Civil Appellate Jurisdiction
(Appellate Side)
M.A.T. 890 of 2022
With
I.A. No. CAN/1/2022
State of West Bengal & Anr.
Vs.
Dr. Saktilal Choudhury & Ors.
Before: The Hon'ble Justice Arijit Banerjee
&
The Hon'ble Justice Apurba Sinha Ray
For the Appellants / : Mr. Amal Kr. Sen, Ld. AGP.
State Mr. Lal Mohan Basu, Adv.
For the Dum Dum : Mr. Amalesh Ray, Adv.
Municipality Ms. Mousumi Bhowal, Adv.
For the Respondent : Mr. Saptarshi Roy, Adv.
No. 1 Mr. Siddhartha Roy, Adv.
Mr. Arka Dipta Sengupta, Adv.
Ms. Kakali Das Chakraborty, Adv.
Judgment On : 13.10.2023
Arijit Banerjee, J.:
1. This appeal is directed against a judgment and order dated March 23,
2022, whereby the writ petition of the respondent no. 1 herein being WPA
4259 of 2016, was disposed of by a learned Judge of this Court.
2
2. The respondent no. 1/writ petitioner was temporarily appointed in the
post of Resident Medical Officer (in short RMO) in Dum Dum Municipality, by
letter dated June 6, 1998, on probation for a period of 6 months. He was
placed in the scale of pay of Rs. 2,200/- - 4,000/-. By a resolution dated
December 29, 1998, the Municipality confirmed the writ petitioner's service
as RMO with effect from December 1, 1998, in the scale of pay which he was
then enjoying.
3. The writ petitioner retired from service upon superannuation on August
31, 2015.
4. The writ petitioner's claim for pensionary benefits was however negated
by the State Authorities on the ground that he was not appointed in a
sanctioned post. Prior approval of the State Government was not obtained for
his appointment.
5. This prompted the writ petitioner to approach the writ Court by filing
W.P.A 4259 of 2016. The writ petition was allowed by a learned Single Judge
by a judgment and order dated November 10, 2016 by relying on a Division
Bench judgment dated January 30, 2008, passed in M.A.T 704 of 2007
(Chairman, Dum Dum Municipality and Ors. v. Dr. Debranjan Biswas
and Anr.). The learned Judge directed the State respondent authorities to
release the petitioner's retiral benefits.
6. That order was carried in appeal by the State respondents by way of
M.A.T 588 of 2017. The Division Bench disposed of the appeal by a judgment
and order dated November 27, 2017, setting aside the order of the learned
3
Single Judge on the ground that the case of Dr. Deb Ranjan Biswas was not
similar to the case of the writ petitioner. The writ petition was remanded for
fresh hearing by the learned Single Judge having determination in the matter,
after exchange of affidavits.
7. The basic point that was urged by the State before the learned Single
Judge as also before us is that the appointment of the writ petitioner was not
in a sanctioned post.
8. The writ petitioner relied on a Government Order dated August 19,
2009, whereby an earlier Government Order dated May 7, 2009 was
amended. The said two Government Orders are extracted below:-
"
GOVERNMENT OF WEST BENGAL
DEPARTMENT OF MUNICIPAL AFFAIRS
WRITERS' BUILDINGS, KOLKATA
ORDER
No. 207/MA/O/C-4/1A-7/2000 Dated, Kolkata, the 7th Day of May, 2009.
WHEREAS it appears that a considerable number of appointments/promotions
were made in a number of Municipalities against sanctioned vacancies holding
erstwhile Scale of Pay of Rs. 380-910/-, since revised to Rs. 4000-8850/-, and
below between the period from the 14 th day of July, 1994 to the 15 th Day of
October, 2000 (hereinafter referred to as the aforesaid period);
AND WHEREAS in absence of approval of the State Government the
Municipalities are facing difficulties relating to the finalisation of pension cases
of the retired employees;
AND WHEREAS processing of such cases by the Directorate of Local Bodies,
with the approval of this Department, taking considerable time;
NOW, THEREFORE, the Governor, for quick disposal of all pending cases, is
pleased hereby to authorise the Director of Local Bodies, West Bengal to issue
orders according post-facto approval of appointments/promotions made by the
Municipalities against sanctioned vacancies holding erstwhile Scale of Pay of
Rs. 380-910/-, since revised to Rs. 4000-8850/-, and below within the
aforesaid period on case to case basis after due examination/enquiry."
GOVERNMENT OF WEST BENGAL
DEPARTMENT OF MUNICIPAL AFFAIRS
WRITERS' BUILDINGS, KOLKATA
ORDER
No. 422/MA/O/C-4/1A-7/2000 Dtd, Kolkata, the 19th Day of August, 2009.
The Governor is pleased hereby to make the following amendment to this
Department Order No. 207/MA/O/C-4/1A-7/2000 dated the 7th Day of May,
2009 (hereinafter referred to as the said order.)
Amendments
In the said order-
1] In the last para for the words "Scale of pay of Rs. 380-910/- since revised to
Rs. 4000-8850/- and below the words scales of pay from Scale of pay of Rs.
380-910/- since revised in Rs. 4000-8850/- to the Scale of pay of Rs. 245-
455/- since revised to Rs. 2850-4880/- shall be substituted.
2] After the last para the following new paragraph shall be inserted.
The Governor to further pleased to direct that no approval of the State
Government is required in the cases of appointments/promotions made by the
Municipalities within the aforesaid period against sanctioned vacancies holding
erstwhile scales of pay from Scale of pay of Rs. 230-414/-. Since revised to Rs.
2700-4400/- to the Scale of pay of Rs. 220-288/- Since revised to Rs. 2600-
4150/- (hereinafter referred to as the said Scales of pay). Or in the cases where
the resolutions adopted by the Board of Councillors of the Municipalities for
making appointments/promotions against the sanctioned vacant posts holding
the aforesaid Scales of Pay but implementation of such resolution has been
kept pending till obtaining Government approval during the aforesaid period."
9. The Writ petitioner contended that since he was appointed on June 1,
1998, he was squarely covered by the aforesaid two Government Orders. In
other words, his appointment would be deemed to have received post-facto
approval from the Government.
10. After noting the submissions made on behalf of the parties, the learned
Single Judge disposed of the writ petition with the following observations:-
"On careful consideration of the rival contentions of the parties it
appears to this Court that the order dated 19th August, 2009
passed by the authority amending the previous order dated 7th May,
2009, comes in aid of the petitioner while determining the issue of
appointment of the petitioner qua approval thereof by the State-
respondents. Since, the petitioner's date of appointment is 1st June,
1998 and he was placed in the scale of pay of Rs. 2,200/- - 4,000/-
therefore this Court finds that there is no bar in applying the said
order dated 19th August, 2009 while deciding the issue of grant of
approval against the appointment of the petitioner in the said post
of RMO.
It also does not escape the notice of this Court on chronological
analysis of the facts enumerated above that from the date of
appointment of the petitioner he was placed in the regular scale of
pay and his scale of pay got periodically re-fixed in terms of the
rules relating to fixation of pay applicable to the approved
employees of the Municipalities.
In addition thereto at no point of time during tenure of the
petitioner he was intimated that he was holding the post which is
not being approved by the concerned State-respondents since his
appointment was not against the sanctioned post; therefore from
the perspective of the writ petitioner it appears to this Court that it
was not possible for him to comprehend that he was not holding the
sanctioned post on substantive basis.
In the above conspectus, this Court finds it apposite to direct the
respondent authorities to process the pension case of the petitioner
and sanction his entire retiral dues which is admissible to him upon
completing the necessary formalities and issue Pension Payment
Order accordingly. While disposing of the pension case of the
petitioner the concerned respondent authorities is also directed to
issue post facto approval, if necessary, in favour of the petitioner
and release the retiral dues including pension within a period of 12
(twelve) weeks from the date of communication of this order."
11. Being aggrieved the State has come up in appeal.
12. Appearing for the State, Mr. Amal Kumar Sen, learned Senior Counsel,
argued that the Government Order Dated May 7, 2009, as amended by the
Government Order dated August 19, 2009, would not apply to the writ
petitioner firstly, because the writ petitioner's initial pay scale was much
higher than what is mentioned in the said Government Orders; and secondly,
because the appointment of the writ petitioner was not in a sanctioned post.
Hence, post-facto approval cannot be deemed to have been given to the
appointment of the writ petitioner.
13. Referring to Section 53(1) of the West Bengal Municipal Act, 1993,
learned Counsel submitted that a Municipality can have only one Medical
Officer. As on the date of appointment of the writ petitioner as RMO, Dr. Deb
Ranjan was the Medical Officer. Hence, it cannot be said that the writ
petitioner was appointed in any sanctioned vacant post.
14. Learned Counsel relied on the decision of the Hon'ble Supreme Court in
the case of State of Rajasthan & Ors. v. Daya Lal & Ors., reported at
(2011) 2 SCC 429 and in particular paragraph 12 of the reported judgment
in support of his submission that the High Courts, in exercise of power
under Article 226 of the Constitution will not issue directions for
regularisation, absorption or permanent continuance, unless the employees
claiming regularisation had been appointed in pursuance of a regular
recruitment in accordance with relevant rules in an open competitive process,
against sanctioned vacant posts. Even temporary, ad hoc or daily-wage
service for a long number of years, let alone service for one or two years, will
not entitle such employee to claim regularisation, if he is not working against
a sanctioned post. Sympathy and sentiment cannot be grounds for passing
any order of regularisation in the absence of a legal right.
15. Learned Counsel also relied on the decision of the Hon'ble Apex Court
in the case of State of Karnataka & Ors. v. M.L. Kesari & Ors., reported
at (2010) 9 SCC 247 and in particular on paragraph 7 of the reported
judgment, in support of his submission that regularization of an employee
may be allowed when the appointment of such employee should not be illegal,
even if irregular. Where the appointments are not made or continued against
sanctioned posts or where the persons appointed do not possess the
prescribed minimum qualifications, the appointments will be considered to be
illegal. But where the person employed possessed the prescribed
qualifications and was working against sanctioned posts, but had been
selected without undergoing the process of open competitive selection, such
appointments are considered to be irregular.
16. Finally, Mr. Sen relied on the decision of a Coordinate Bench rendered
on March 11, 2021 in MAT 1671 of 2019 (Calcutta State Transport
Corporation & Ors. v. Bimal Chandra Roy & Ors.) and in particular on
paragraphs 17 and 18 of the judgment to buttress his submission that the
appointments made without following the due process or the rules relating
thereof do not confer any right on the appointees and the Courts cannot
direct their absorption, regularization or re-engagement nor make their
service permanent and the High Court in exercise of jurisdiction under Article
226 of the Constitution should not issue directions for absorption,
regularization or permanent continuance unless the recruitment had been
done in a regular manner in terms of the constitutional scheme and that the
Courts must be careful that they should not lend themselves to facilitate the
bypassing of the constitutional and statutory mandates.
17. Appearing for the respondent/writ petitioner, Mr. Saptarshi Roy,
Learned Advocate, submitted that the Government Order dated May 7, 2009,
as amended by the Government Order dated August 19, 2009, squarely
covers the case of the writ petitioner. Hence, his appointment would be
deemed to have been accorded post-facto approval. Therefore, there can be no
reason for not releasing the pensionary benefits of the writ petitioner.
18. The alternative argument of learned Counsel was that Sections 53 (3)
and (4) of the West Bengal Municipal Act, 1993, as they stood prior to the
amendment of sub-section 4 by West Bengal Act 16 of 2002, with effect from
2/9/2002, permitted the Board of Councillors of a Municipality to create the
post of an officer or other employee without prior sanction of the State
Government, if the number of posts to be so created in a year was not more
than one per cent of the total number of sanctioned posts of officers and other
employees in existence in the immediately preceding year. It would be helpful
to extract sub-sections 3 and 4 of Section 53 of the 1993 Act, as they read
prior to the 2002 amendment ;-
"(3) The Board of Councillors at a meeting may, subject to the
norms regulating the size of the municipal establishment for each
Municipality and the categories or designations of officers and other
employees of each Municipality with their scales of pay as may be
fixed by the State Government from time to time, determine what
officers and other employees, other than the officers mentioned in
sub-section (1), are necessary for a Municipality, create posts of
such officers and other employees, and fix the salaries and
allowances to be paid and granted to such officers and other
employees.
4) Subject to the norms regulating the size of a municipal
establishment as may be fixed by the State Government under sub-
section (3), no post of an officer or other employee shall be created
under sub-section (3) by the Board of Councillors of a Municipality
without the prior sanction of the State Government if the number of
posts to be so created in a year for a Municipality is more than one
per cent of the total number of sanctioned posts of officers and
other employees in existence in the year immediately preceding.
19. Mr. Roy submitted that it would appear from the affidavits affirmed on
January 6, 2023, on behalf of the Dum Dum Municipality, that there were
341 sanctioned posts in Dum Dum Municipality as on 1.7.1998. Out of such
posts, seven posts were filled up by the officers referred to in Sub-Section 1 of
Section 53 of the 1993 Act. In the year 1998 only three persons were
appointed by the Board of Councils of the Municipality which was less than
1% of 341. Hence, prior sanction of the State Government was not required
for appointing the writ petitioner. Consequently, his retrial benefits cannot be
withheld.
20. Mr. Roy relied on the decision of a learned Single Judge of the Court in
the case of Ranaghat Municipal Employees' Association & Ors. v. State
of West Bengal & Ors., reported at (2003) 4 CHN 55 and in particular on
paragraph 5 thereof wherein the learned Judge obscured that Section 53(4) of
the 1993 Act permitted a Municipality to create a limited number of posts
without the sanction of the Government.
21. Learned Counsel also relied on the decision of a Coordinate bench of
this Court in the case of The State of West Bengal & Ors. v. Tapas
Chakraborty & Ors., reported at (2019) 1 CHN 684. It may not be
necessary to discuss the said judgment for the purpose of deciding the
present appeal.
22. Appearing for the Municipality, Mr. Amalesh Ray, learned Advocate
drew our attention to certain paragraphs of the Municipality's affidavit
affirmed on January 6, 2023. It would be helpful to set out a few paragraphs
from the said affidavit:-
"6. (c) On a scrutiny of the said chart, it appears that there were
341 sanctioned posts (139+202) in Dum Dum Municipality as on
01.07.1998. Out of 341 sanctioned posts, 7 sanctioned posts were
filled up by the officers referred to in sub-section 1 of Section 53 of
the said Act, 1993.
7 (a). I say that the names of residential medical officers / medical
officers/ dental surgeon/ resident physician have been sent to the
office of Directorate of Local Bodies in connection with the instant
case which are as follows:-
Dum Dum Municipality
Sl Name of Staff Designation Date of appoint- Remarks
ment
No.
1. Dr. Bidhan R.M.O 04.10.1991
Ch. Mondal
2. Dr. Amitesh R.M.O 01.07.1991 31.07.2022
Sarkar
(Retired)
3. Smt. Purnima M.O. 01.03.1994 29.07.2016
Biswas, Wife
(Expired)
of late Dr.
Nitya Gopal
Biswas
4. Dr. Rafiqul R.M.O 01.03.1994 31.07.2016
Hasan
(Retired)
5. Dr. Subhajit Dental Surgeon 01.05.1997
Bhattacharjee
6. Dr. Amlan R.M.O 01.11.1994
Kanti Majum-
der
7. Dr. Asit Ran- R.M.O 01.09.1998
jan Kundu
8. Dr. Priyadarsi R.M.O 03.09.1998
Sarkar
9. Dr. Sukhendu R.M.O 15.01.1994
Bhaumik
10. Dr. Ananda Resident 01.03.1988 C.P.F.
Bagchi Physician
11. Dr. Sakti R.M.O 01.02.1986 C.P.F.
Chakraborty
(Retired on 31.10.2014)
12. Dr. Ashoke R.M.O 01.05.1986 C.P.F.
Kumar Mon-
(Retired on 30.11.2016)
dal
13. Dr. Chandana R.M.O 01.04.1991
Ghosal
14. Dr. Sakti Lal R.M.O 01.06.1998 31.08.2015
Choudhury
(RETIRED)
15. Smt. Barnali R.M.O 03.05.1983 Getting pension as per
Malakar, wife Court order, Dr.
of Late Dr. Malakar retired on
Samir Mala- 31.05.2014.
kar
16. Dr. Deb Ran- R.M.O 02.05.1983 Has got pension as per
jan Biswas Court order, Dr. Biswas
and his wife now
deceased.
17. Amarendra M.O 02.01.1975 Retired on 31.10.2002
Chatterjee (Pathological
Getting Pension
Dept.)
18. Dilip Kumar M.O. 01.12.1972 Retired on 30.06.2005
Sadhu getting pension
7(b) I say that the names of residential medical officers of Dum Dum
Municipal Specialized Hospital and Cancer Research Centre which
have been produced before the Hon'ble Court on 14.12.2022 from
the year 1991 to 1998 are as follows:-
Sl Date of Resolution of the Meeting of Name of Medical Officer/
No. Dum Dum Municipality/Date of Residential Medical Officer.
Appointment
1. 18.03.1991 Dr. Chandan Bhattacharya
(Ghosal)
2. 01.07.1991 Dr. Amitesh Sarkar
3. 13.08.1993 Dr. Bidhan Chandra Mondal
4. 12.01.1994 Dr. Sukhendu Bhowmick
5. 26.02.1994 Dr. Rafiqul Hasan
6. 26.02.1994 Dr. Nitya Gopal Biswas
7. 31.10.1994 Dr. Amlan Kanti Majumdar
8. 29.04.1997 Dr. Subhajit Bhattacharya
(Dental Surgeon)
9. 02.06.1998 Dr. Sakti Lal Chowdhury
10. 31.08.1998 Dr. Asit Ranjan Kundu
11. 31.08.1998 Dr. Priyadarshi Sarkar
7(c) Copies of the appointment letters of the aforesaid residential
medical officer/medical officer are annexed hereto and marked as
"ANNEXURE-R/4".
8. On verification of the records lying in the Establishment and
Accounts Section, Dum Dum Municipality, it is found that the
following officers and/or employees, who did not fall within the
meaning of the officers as referred to sub-section 1 of Section 53 of
the said Act, 1993 have been appointed at the meetings of the Board
of Councillors, Dum Dum Municipality within the period stretching
from 01.01.1998 to 31.08.1998:
Sl Date of Resolution of the meeting of the Name of Rank of Offices
No. Board of Councillors, Dum Dum and / or employees
Municipality/Date of Appointment
1. 02.06.1998 Dr. Sakti Lal
Chowdhury
2. 31.08.1998 Dr. Asit Ranjan Kundu
3. 31.08.1998 Dr. Priyadarshi Sarkar
23. We have carefully considered the rival contentions of the parties.
24. The only issue involved in this case is whether or not the respondent
no. 1/writ petitioner is entitled to receive pensionary benefits. The appellants
say that the respondent no. 1 was not appointed in a sanctioned vacant post
and no prior approval of the State Government was obtained by the
Municipality for appointing him in the concerned post. The respondent no. 1
would contend that he is covered by the Government Orders dated May 7,
2009, as amended by the Government Order dated August 19, 2009. Hence
post facto approval for his appointment is deemed to have been accorded by
the State Government. Alternatively, the respondent no. 1 contends that he
was appointed by the Municipality in one of the three posts created by the
Municipality in exercise of power under sub-sections 3 and 4 of Section 53 of
the West Bengal Municipality Act, 1993. Since, the total number of
sanctioned posts of officers and other employees in the year immediately
preceding the year of appointment of the respondent no. 1 was 341, 3 being a
figure not exceeding 1% of 341, no prior approval of the State Government
was necessary under sub section 4 of Section 53 of the 1993 Act as it stood
prior to being amended in 2002.
25. We agree with the contention of learned Advocate for the appellants
that the respondent no. 1 is not covered by the Government Order dated May
7, 2009, as amended by the Government Order dated August 19, 2009 and he
is not entitled to take advantage of the said Government Orders. Although the
learned Single Judge allowed the writ petition on the basis that the
Government Order dated May 7, 2009, as amended by the Government Order
dated August 19, 2009, applies to the respondent no. 1 herein, we
respectfully disagree with the learned Single Judge on that score.
26. The Government Order dated May 7, 2009, authorised the Director of
Local Bodies, West Bengal, to issue relevant orders in respect of those
employees who were appointed in Scale of pay of Rs. 380-910/- which was
revised to Rs. 4,000- -8,850/- and below. The scale of pay of Rs. 380-910/-
was the pre-revised scale i.e., the scale applicable to the concerned employees
before the pay revision. After pay revision, the employees who were drawing
salary in the scale of pay of Rs. 380-910/-, started drawing salary in the scale
of pay of Rs. 4,000-8,850. The Government Order dated May 7, 2009, had
incorporated the word "below" after the words "since revised to Rs. 4,000-
8,850 and". That means, the Government wanted to extend the benefit of the
said Order even to the employees enjoying pay scales lesser than the pay
scale of Rs. 4000-8850/-. Hence, going by the Government Order dated May
7, 2009 the respondent no. 1/writ petitioner, who was in the scale of pay of
Rs. 2,200 - 4,000/- (revised) would have been entitled to the benefits under
the said Government Order.
27. But by issuing the Government Order dated August 19, 2009, the word
'below' mentioned in the Government Order dated May 7, 2009, was deleted.
The effect was that the benefit of post facto approval of appointments or
promotion in respect of the employees who were in scale of pay lesser than
Rs. 380-910/- (pre revised) or Rs. 4,000-8,850/- (revised) was withdrawn. In
other words, by the Government Order dated August 19, 2009, the benefit
under the Government Order dated May 7, 2009, was restricted to those
employees who were in the scale of pay of Rs. 380-910/- (pre-revised) or Rs.
4,000/- - 8,850/- (revised) and not below. As the respondent no. 1/writ
petitioner was in the lesser pay scale of Rs. 2,200 - 4,000/-, he could not
claim the benefit of the Government Order dated May 7, 2009 as amended by
the Government Order dated August 19, 2009. To be more precise, before the
relevant pay revision, the corresponding pay scale of Rs. 2200 - 4000/- was
certainly lesser than the pay scale of Rs. 380-910/-
28. However, we have to accept the alternative argument advanced by
learned Advocate for the respondent no. 1/writ petitioner.
29. From the affidavit filed by the Municipality, the relevant portion whereof
has been extracted above, we find that as on July 1, 1998, i.e., the year
immediately preceding the year in which the respondent no. 1 was appointed
there were 341 sanctioned posts in Dumdum Municipality. Only 3
appointments were made by creation of posts in exercise of power under sub-
section 4 of Section 53 of the 1993 Act, in the following year. 1% of 341 is
3.41. Hence, the Municipality as per the un-amended sub Section 4 of
Section 53 of the 1993 Act, could have created up to 3.41 posts without prior
approval of the State Government. Since a fraction of post is in-capable of
creation, the logical conclusion is that the Municipality could create up to 3
posts of officers/employees without prior sanction of the State Government.
We find from the affidavit of the Municipality that within the period stretching
from 01.01.1998 to 31.08.1998, only 3 officers/employees who did not fall
within the meaning of officers as referred to in Section 53(1) of the 1993 Act,
were appointed in exercise of power under Section 53(4) of the said Act. They
are Dr. Saktilal Choudhury (writ petitioner), Dr. Asit Ranjan Kundu and Dr.
Priyadarshi Sarkar.
30. In view of the aforesaid we must hold that the respondent no. 1 /writ
petitioner was validly appointed by the Municipality in exercise of power
under section 53(4) of the 1993 Act as that section stood prior to the 2002
amendment. Hence, neither prior sanction of the State Government for
appointment of the writ petitioner was necessary nor can he be denied
pensionary benefits. The question of the writ petitioner being appointed in a
sanctioned vacant post also does not arise as the post in which he was
appointed was one validly created by the Municipality in exercise of power
conferred on it by the 1993 Act.
31. Accordingly, we agree with the conclusion reached by the learned Single
Judge although we disagree with His Lordship's reasoning. We therefore do
not interfere with the order under appeal. We affirm the operative portion of
the order and direct the appellants to release the pensionary benefits of the
respondent. No. 1/ writ petitioner in terms of the order of the learned Single
Judge. However, we extend the time period to do so by 8 weeks from date.
32. The appeal and the connected application are disposed of accordingly.
33. Urgent certified website copies of this judgment, if applied for, be
supplied to the parties subject to compliance with all the requisite formalities.
I agree.
(Apurba Sinha Ray, J.) (Arijit Banerjee, J.)
