Krishna Gopal Nath vs State Of West Bengal & Ors
2023 Latest Caselaw 6467 Cal

05    25.09.2023
      Ct.15
                                    W.P.A. 29287 of 2015
rkd

                                      Krishna Gopal Nath
                                             -vs-
                                  State of West Bengal & Ors.

                   Mr. Chittapriya Ghosh,
                   Ms. Priyanka Saha
                                                               ....for the petitioner.
                   Mr. Pantu Deby Roy,
                   Mr. Subrata Guha Biswas
                                                                    ....for the State.

                            The     writ     petition    is    taken     up     for

                   consideration today in presence of the learned

                   advocates representing the petitioner and the State

                   respondents.

However, in spite of serving notice upon the

Naihati Municipality the said Municipality is not

represented today.

Affidavit-of-service was filed on behalf of the

petitioner on the last occasion showing service of

notice on the Municipality and in consideration of

the said affidavit-of-service there was a specific

direction passed by this Court on 21st September,

2023 observing that in view of absence of

representation on behalf of the Naihati Municipality

hearing was adjourned on 21st September, 2023.

However, on the next date if this Court finds that

there is no representation on behalf of the said

Municipality the writ petition shall be dealt with in

absence of the learned advocate of the Municipality.

In view of aforesaid situation with regard to

absence of representation on behalf of the

Municipality this Court has no other alternative but

to consider the writ petition finally.

The learned advocate representing the

petitioner submits that the petitioner was

appointed as Conservancy Supervisor pursuant to

the resolution adopted in the meeting of the Board

of Councillors, Naihati Municipality (hereinafter

referred to as the "said Municipality") dated 29th

June, 1998 since it was found that the post against

of which petitioner's appointment was considered,

was lying vacant. Accordingly, vide appointment

letter dated 30th June, 1998 petitioner was

appointed on substantive basis as Conservancy

Supervisor with effect from 1st July, 1998 and he

was placed on a regular scale of pay of Rs.980-

1755/-. Subsequently, appointment of the

petitioner stood confirmed vide order of the

Chairman of the said Municipality dated 10th

March, 1999 with effect from 1st February, 1999 in

the existing scale of pay.

On perusal of the document which is

annexed at page 21 of the writ petition, it appears

that in the said letter dated 10th March, 1999 of the

Chairman petitioner's name was appearing at serial

No.85. Ultimately petitioner retired on

superannuation on 30th June, 2013. In view of date

of superannuation of the petitioner on attaining 60

years the Chairman of the said Municipality by

issuing notice dated 17th July, 2012 asked the

petitioner to meet the accounts department of the

Municipality for calculation on retirement benefit

and preparation of pension papers. Such

retirement notice dated 17th July, 2012 is at page

25 of the writ petition.

It has been contended on behalf of the

petitioner upon placing reliance on the Government

Orders dated 7th May, 2009 and 19th August, 2009

that the petitioner is entitled to get the benefit of

these two Government Orders in view of the fact

that date of appointment of the petitioner was 1st

July, 1998 whereas Government Order dated 7th

May, 2009 prescribes that post facto approval of

appointment/promotion needs to be granted in

favour of the employee of the Municipality in the

event the employee is appointed against sanctioned

vacancy within the period from 14th July, 1994 to

15th October, 2000.

On behalf of the petitioner reliance has also

been placed on the judgment of this Court delivered

on 4th April, 2022 which is reported in AIR Online

2022 Cal 703 (Prabir Kumar Roy -vs- -State of

West Bengal).

Reliance has also been placed on the

judgment of the Hon'ble Division Bench dated 14th

December, 2022 passed on an intra Court appeal

being MAT 1308 of 2022 (State of West Bengal &

Ors. - Prabir Kumar Roy & Ors.) whereby the

Hon'ble Division Bench was pleased to dismiss the

intra Court appeal preferred by the State

respondents against the judgment delivered in

Prabir Kumar Roy (supra).

        Mr.     Deb      Roy,     learned    Additional

Government      Pleader       represents    the   State

respondents and submits in reference to the order

of the Director of Local Bodies, West Bengal dated

29th April, 2014 read with Government Order dated

6th February, 2023 that the petitioner needs to be

appointed initially against the sanctioned vacancy.

It is also contended that in view of the

Government Order dated 6th February, 2023 if

initial appointment of the petitioner was outside

the purview of Section 54(1) of the West Bengal

Municipal Act, 1993 and if such appointment is

against the sanctioned post in that event there is

no impediment in considering the prayer of the

petitioner in terms of the said Government Order

dated 6th February, 2023.

Having considered the submissions made

on behalf of the petitioner and the State

respondents and on perusal of the relevant

materials available on record, it appears that the

petitioner was appointed as Conservancy

Supervisor on 1st July, 1998 and was placed on

regular scale of pay and subsequently service of the

petitioner was confirmed with effect from 1st

February, 1999 in terms of the order of the

Chairman of the said Municipality dated 10th

March, 1999. Petitioner worked as regular

Conservancy Supervisor for the period from 1st

July, 1998 till 30th June, 2013 and thereafter

retired on superannuation. It also appears that

petitioner enjoyed regular scale of pay as approved

Conservancy Supervisor and there was no demur

made by the State respondents as well as the said

Municipality during the aforesaid tenure of the

petitioner against his appointment.

On scrutiny it also appears that the

condition stipulated in Government Order dated 7th

May, 2009 read with Government Order dated 19th

August, 2009 is fulfilled so far service of the

petitioner is concerned in view of his appointment

with effect from 1st July, 1998. The scale of pay as

indicated in the appointment letter dated 30th

June, 1998 does not show that petitioner is not

entitled to get the benefit of the Government Orders

dated 7th May, 2009 and 19th August, 2009. In

terms of the submission made on behalf of the

State respondents only test which is required to be

fulfilled is appointment of the petitioner in

sanctioned vacancy in reference to the relevant

Government Orders. The long tenure of the

petitioner from 1st July, 1998 to 30th June, 2013 as

Conservancy Supervisor on enjoying regular scale

of pay corroborates the contention of the petitioner

that he was appointed on a sanctioned post in

consideration of the fact that there was no

objection made by the State respondent and the

said Municipality during such tenure of the

petitioner. It is only after the superannuation of

the petitioner by issuing memo dated 29th April,

2014 Director of Local Bodies raised the issue

relating to sanctioning of post which was manned

by the petitioner for a period of approximately

fifteen years.

In view of aforesaid facts, the Director of

Local Bodies by issuing memo dated 29th April,

2014 ought not to have issued such objection at

the time of settling the retiral dues of the petitioner.

The issue of right of the employees of

Municipality to receive retiral dues by virtue of

Government Orders dated 7th May, 2009 read with

19th August, 2009 has been considered by this

Court in Prabir Kumar Roy (supra).

Vide judgment dated 4th April, 2022 passed

in Prabir Kumar Roy (supra) this Court has

granted identical relief in favour of the petitioner

therein and the said order was assailed before the

Hon'ble Division Bench by the State respondents

but such challenge failed since the appeal preferred

by the State respondents was dismissed vide order

dated 14th December, 2022.

In view of aforesaid scenario and upon

placing reliance on the judgment delivered by this

Court in Prabir Kumar Roy (supra) the order of the

Director of Local Bodies, Government of West

Bengal dated 29th April, 2014 is set aside.

The concerned respondent authorities are

directed to settle the retiral dues of the petitioner

and release the same within eight weeks from the

date of communication of this order, if necessary

upon granting post facto approval in terms of the

aforesaid relevant Government Orders.

With the aforesaid direction the writ

petition is disposed of.

However, there shall be no order as to

costs.

Urgent photostat certified copy of this

order, if applied for, be given to the learned

Advocates for the parties on the usual

undertakings.

(Saugata Bhattacharyya, J.)