Calcutta High Court (Appellete Side)
& Anr vs Jaitra Acharya & Ors on 19 October, 2023
19.10.2023
sayandeep
Sl. No. 02-17
Ct. No. 12
FMA 708 of 2019
West Bengal Essential Commodities Supply Corp. Ltd.
& anr.
-Versus-
Jaitra Acharya & ors.
with
FMA 697 of 2019
with
FMA 698 of 2019
with
FMA 699 of 2019
with
FMA 706 of 2019
with
FMA 707 of 2019
with
MAT 1578 of 2018
with
MAT 553 of 2020
with
CAN 1 of 2020, CAN 2 of 2020
with
MAT 554 of 2020
with
MAT 555 of 2020
with
CAN 1 of 2020, CAN 2 of 2020
with
MAT 556 of 2020
with
CAN 1 of 2020, CAN 2 of 2020
with
MAT 560 of 2020
with
MAT 561 of 2020
with
MAT 562 of 2020
with
CAN 1 of 2020, CAN 2 of 2020
with
MAT 563 of 2020
with
CAN 1 of 2020, CAN 2 of 2020
with
MAT 565 of 2020
Mr. Susovan Sengupta
Mr. Sanjoy Saha
...... for the appellants
2
Mr. Puspal Chakraborty
Mr. Prisanka Ganguly
......for the respondents
The issue involved in all the appeals are similar
and facts in all the appeals are one and the same and
therefore disposed of by this common Judgment. It is
sufficient to refer to the facts in appeal No. 708 of 2019
to dispose of all appeals.
The first respondent's mother sought for
appointment on compassionate ground for first
respondent. The Committee constituted by Board of
Directors of the appellant recommended and appointed
first respondent as Assistant Grade-II on temporary
basis on daily wages on 11th March, 2004. The first
respondent worked up to 2013. During the year 2011-
2012, the appellant advertised for appointment to
various posts including Assistant Grade-II. On
application seeking information under Right to
Information Act, the appellant by the reply dated
02.05.2012 furnished the information that 15 persons
engaged/appointed as that of first respondent on
compassionate ground up to 2003 were absorbed in
regular basis in the year 2008. The appellant also
informed that there is no specific rule for appointment
on compassionate ground and only State Government
Rules are followed for appointment. The first respondent
and others sought for absorption as that of 15 persons
and filed various writ petitions. In the writ petitions,
various orders were passed on different dates. On
10.06.2014, the appellant undertook that they will not
take adverse action against the first respondent.
Subsequently, the appellant filed affidavit-in-opposition
and took a stand that engagement of 15 persons and
their subsequent absorption were illegal, the first
respondent has no vested right and there is no specific
rule for appointment on compassionate ground and the
first respondent cannot claim negative equality.
The learned Judge considered the averments in
the affidavit-in-opposition and various Judgments relied
on by both counsel appearing for appellant as well as
first respondent, concluded that appointment and
subsequent absorption of 15 persons were not illegal as
the same was done by following the State Government
Rules. On such conclusion and distinguishing the ratio
in the Judgment relied on by the counsel for appellant,
allowed all the writ petitions.
Against the said order, the present appeals are
filed.
Learned counsel appearing for the appellant
contended that there is no Scheme/specific Rule in the
appellant Corporation with regard to appointment on
compassionate ground and therefore the first
respondent and others are not entitled to absorption.
The learned Judge erred in holding that absorption of
15 persons were not illegal as it was done following the
State Government Rules. The learned Judge further
erred in holding that first respondent is similarly placed
person as that of 15 persons and entitled to absorption.
With regard to contract workers working in the
appellant, the Managing Director of the appellant has
passed orders for granting consolidated salary to them.
Unless impugned orders passed by the learned Single
Judge are set aside all the other contract workers also
will claim absorption. The learned Judge failed to
consider the above facts and erroneously held that there
is no financial burden for the appellant if first
respondent and others are absorbed. As per
notification being notification No. 142-EMP dated
01.11.2007 of the Labour Department, a draft Rules
were framed by the appellant and sent to the
Government for approval. Unless Rules are approved
by the Government, the first respondent and others are
not entitled to absorption and prayed for setting aside
all the orders of the learned Single Judge and allowing
the appeals.
Learned counsel appearing for the first
respondent in all the appeals made submissions as per
averments in the writ petition and in support of the
orders of the learned single Judge. Learned counsel
appearing for first respondent also submitted that by
the order dated 23.04.2015 this Court moulded the
relief for permanent absorption and called for the
affidavit and prayed for dismissal of all the appeals.
Heard the learned counsel appearing for appellant
and respondents and perused entire materials on
record.
It is not in dispute that appointment of first
respondent and others was as per the recommendation
of the Committee constituted by Board of Directors of
the appellant. The first respondent was working from
2004 up to 2013. The issue with regard to their
continuation in service of the appellant arose during the
year 2011-2012 when appellant had made
advertisement for appointment of various posts
including Assistance Grade-II. From the materials on
record, it is seen that there is no rule in the appellant
Corporation for appointment on compassionate ground.
The appellant admittedly followed State Government
Rule for granting appointment on compassionate
ground. That appointment was made by the Committee
consisting of Board of Directors constituted by the
appellant. It is not the case of the appellant that first
respondent and others are not eligible for appointment
on compassionate ground as per the Rules of State
Government. They were appointed only as per the
recommendation of the Committee which was accepted
by Board of Directors. In view of the same, now it is not
open to the appellant to contend that all the
appointments made on compassionate ground following
the State Government Rules are illegal. The learned
Judge has considered the fact that 15 others who were
appointed on compassionate ground were absorbed on
regular basis and appointment of first respondent and
others are not illegal based on the undisputed facts
placed before him. In view of the fact that appointment
of the first respondent and others are not illegal, the
learned Judge rightly did not accept the contention of
the counsel for appellant and Judgment relied on by
him and accepted the ratio in the Judgment relied on by
the counsel for first respondent. The reasons given by
the learned Judge for allowing all the writ petitions are
cogent, valid and legal and passed after properly
appreciating the facts and law. There is no error or
illegality warranting interference of this Court.
For the above reason, all the appeals are
dismissed.
There shall be no order as to costs.
Urgent certified photocopy of this order, if applied
for, be supplied to the parties expeditiously on
compliance of usual legal formalities.
(V.M. Velumani, J.)
(Rai Chattopadhyay, J.)
