Sukdeb Karmakar vs The State Of West Bengal & Ors
2023 Latest Caselaw 6003 Cal

08.09.2023
Item No.12
Court No.6.
    S. De
                               F.M.A. 1340 of 2022
                                        with
                               I.A. No. CAN/1/2022

                               Sukdeb Karmakar.
                                       Vs.
                         The State of West Bengal & Ors.
                                          [


                     Mr. Tarapada Das,
                                      ...for the appellant.
                     Mr. Lalit Mohan Mahata,
                     Mr. Ziaul Haque,
                                      ...for the State.
                     Mr. Siva Prasad Ghosh,
                                      ...for the respondent no.10.

A judgment and order dated August 30, 2022

whereby the appellant's writ petition being WPA 9711

of 2016 along with the connected applications were

dismissed by a learned Single Judge of this Court, is

the subject matter of challenge in this appeal.

It appears that the appellant/writ petitioner was

contractually engaged in the post of Gram Rojgar

Sevak (in short 'GRS') vide Memo dated December 2,

2014 issued by the Block Programme Officer,

Bandwan. His engagement was initially for the period

of one year with a clause for renewal for another year.

However, his engagement was terminated vide a

communication dated April 27, 2016, made by the

concerned Block Development Officer to him, on the

basis of an order dated April 20, 2016, passed by the

District Magistrate, Purulia.

The ground on which the appellant's

engagement was terminated was that he did not have

Mathematics and Physics as compulsory subjects in

his Higher Secondary although the same was a

requirement in the concerned advertisement notice

dated October 28, 2014.

The appellant approached the learned Single

Judge challenging the communication dated April 27,

2016 as also the order of the District Magistrate,

Purulia, dated April 20, 2016. The order of the

District Magistrate, Purulia, reads as follows :

"3 20.04.2016 The S/Rs are perused. Both Sri Mahato & Sri Karmakar are present. BDO Bandwan is also present.

As per written submission of Sri Karmakar, he had Physics in Class XI only and Mathematics in Class XII only, both as Additional subjects and not as compulsory subjects in Higher Secondary examination.

The clarification of Nodal Officer for WBSCVET in Purulia District & Principal, Purulia Polytechnic College has also been received. It also indicates clearly that Sri Karmakar had Physics in only Class XI and Mathematics in only Class XII, both as Additional subjects, during his Higher Secondary examination.

Now, as per clarification issued by Department of Panchayats & Rural Development, Government of West Bengal vide No.6561-RD(NREGA)/18S-03/2009 dated 07.10.2009, candidates passing Vocational course (X+2 level) with Physics and Mathematics as compulsory

subject are only eligible for the post of GRS. Hence, it is crystal clear that Sri Karmakar was not eligible for the post of GRS from the very beginning! Sri Karmakar, when he was informed of his inteligibility for getting engaged in the post of GRS and the fact that his order of engagement would be directed to be terminated after this hearing if he could not bring out any new information/argument, chose to remain silent.

Hence, BDO Bandwan is directed to terminate the engagement of Sri Sukdeb Karmakar in the contractual post of GRS in Kuilapal GP of Bandwan block immediately after receipt of this order, BDO, Bandwan is also directed to arrange for payment to Sri Karmakar as per norm till the date of his termination."

The learned Judge after recording the

submissions of the parties in detail, dismissed the writ

petition on broadly two grounds. Firstly, the learned

Judge held that what the writ petitioner was trying to

do was to enforce a private contract of employment by

filing a writ petition. The contract was not a statutory

contract. Hence, the writ petition was not

maintainable. Secondly, on merits, the learned Judge

held that on a proper interpretation of the clauses in

the advertisement notice, the writ petitioner was

required to have Mathematics and Physics as

compulsory subjects in his Higher Secondary.

However, admittedly, the writ petitioner had

Mathematics and Physics as additional subjects. This

would not be in conformity with the requirements

mentioned in the advertisement notice. Hence, the

learned Judge did not find any error or irregularity in

the order of the District Magistrate holding that the

writ petitioner was initially not entitled to be engaged.

His engagement was wrongful and hence, should be

terminated.

Being aggrieved, the writ petitioner has come up

by way of this appeal.

We have heard Mr. Das, learned advocate

appearing for the appellant, at length. We have not

called upon the learned advocates for the State or the

private respondents to make any submission, since

according to us, there is no merit in this appeal.

We are in agreement with the learned Single

Judge that the engagement of the appellant/writ

petitioner was purely contractual and for a finite

period indicated in the engagement Memo. Prior to

expiry of the period of engagement, it transpired that

the appellant did not conform to the requirements

mentioned in the advertisement notice. Accordingly,

his contractual engagement was terminated. The

contract did not have statutory flavour. The appellant

ought to have approached the competent Civil Court

with any grievance that he may have had regarding

termination of his engagement. The learned Judge

rightly held, in our opinion, that the high prerogative

writ jurisdiction of the High Court could not be

invoked by the writ petitioner in the facts and

circumstances of the case.

Mr. Das, relied on a decision of a co-ordinate

Bench in MAT 1281 of 2015 (The Secretary of the

Managing Committee, Chuamashina High School

& Anr. Vs. State of West Bengal & Ors. and MAT

1544 of 2015 (State of West Bengal & Ors. Vs.

Smt. Anima Karmakar & Ors.) rendered on March

30, 2017 in support of his argument that a private

contract of employment could also be enforced in the

writ jurisdiction. We have gone through the said

judgment. We searched for the discussion on this

aspect in that judgment but in vain. This point was

not considered in the said judgment at all.

Even on merits, we are ad idem with the learned

Single Judge. A bare perusal of the concerned

advertisement notice would show that the candidates

aspiring to serve as GRS, were required to have

Mathematics and Physics in their Higher Secondary.

Mr. Das argued that the notice did not say that the

candidates must have had those two subjects as

compulsory papers. It was enough if the candidates

had Mathematics and Physics as additional subjects.

We are not in agreement with Mr. Das. We are of the

considered opinion that the candidates were required

to have those two subjects as compulsory subjects.

This would also be borne out by the Notification dated

October 7, 2009, issued by the Department of

Panchayats and Rural Development, Government of

West Bengal.

However, we are told that the appellant served

as GRS from April 2016 till December 2016 for which

he has not received remuneration. We direct the

concerned Block Development Officer to release the

remuneration of the appellant for that period, if the

same has already not been released, within four weeks

from the date of communication of this order by the

appellant to the Block Development Officer.

Resultantly, we hold that there is no infirmity in

the judgment and order impugned in this appeal.

The appeal being FMA 1340 of 2022 is dismissed

along with the connected application being I.A. No.

CAN 1 of 2022.

There will be no order as to costs.

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.)