Calcutta High Court
Debabrata Bera & Ors vs The State Of West Bengal & Ors on 10 May, 2024
IN THE HIGH COURT AT CALCUTTA
Constitutional Writ Jurisdiction
(ORIGINAL SIDE)
Present:
The Hon'ble Justice Rai Chattopadhyay
WPO 2626 of 2022
IA No: GA 1 of 2023
Debabrata Bera & Ors.
Vs.
The State of West Bengal & Ors.
WPO 2629 of 2022
Sanjib Chakraborty & Ors.
Vs.
The State of West Bengal & Ors.
WPO 2631 of 2022
Dipak Kumar Mistry & Ors.
Vs.
The State of West Bengal & Ors.
WPO 2632 of 2022
IA No: GA 1 of 2023
Prattay Banik & Ors.
Vs.
The State of West Bengal & Ors.
For the Petitioners : Mr. Bikash Ranjan Bhattacharyya,
: Mr. R. N. Chakraborty,
: Ms. Tanushree Das.
For the K.M.C : Mr. Aloke Kr. Ghosh,
: Mr. Arijit Dey.
Page 2 of 26
For the State : Mr. Jayanta Samanta,
: Mr. Kushal Biswas.
Heard on : 12/12/2023
Judgment on : 10/05/2024
Rai Chattopadhyay,J.
1. Four writ petitions being (i) WPO No. 2626 of 2022 with GA 1 of 2023 (ii)
WPO No. 2629 of 2022, (iii) WPO No. 2631 of 2022, (iv) WPO No. 2632
of 2022 with GA 1 of 2023, have been heard together. Those are being
disposed of by dint of a common judgment, as follows.
2. The writ petitioners are working for gain with respondent no. 3, that is,
Kolkata Municipal Corporation. The writ petitioners are posted as Sub-
Assistant Engineers. Until now their services have been controlled and
guided by the Recruitment Regulations of the respondent Corporation,
being a Circular dated August 10, 2020. Their promotional post is that
of an Assistant Engineer. The promotional policy as was prevalent so far
is as follows:-
" by promotion from the posts borne in the common cadre for Sub
Assistant Engineer (Civil/Mechanical/Electrical), 50% of the post of total
Cadre strength of Assistant Engineer (Civil/Mechanical/Electrical) should
be filled up by promotion from the post borne in the common cadre for
Sub Assistant Engineer who would have at least 10 years experiences as
Sub Assistant Engineer (Civil/Mechanical/Electrical) and
15% of the post of total cadre strength of Assistant Engineer
(Civil/Mechanical/Electrical) shall be filled up by promotion from amongst
the Sub Assistant Engineers (Civil/Mechanical/Electrical) having an
Engineering Degree or equivalent from a recognized University; and
having at least 10 years' experience as Sub Assistant Engineer
(Civil/Mechanical/Electrical) out of which a minimum of 5 years should be
a degree (or equivalent) holder Sub Assistant Engineer
(Civil/Mechanical/Electrical) in respective streams.
35% of the total cadre strength shall be filled up by direct recruitment
observing necessary formalities."
3. The writ petitioners have put forth their grievance that, in spite of
vacancy having arisen, the process of promotion has not been initiated
by the respondent No. 3/Corporation in due time, upon the vacancy
being created. They say that in other areas and for other posts the
authorities have duly conducted the process of promotion, so that the
posts may be filled in time, but not in case of the writ petitioners. Such
inaction on part of the respondent Corporation has been turned out to be
a motivated one, for the reason as stated herein below. The writ
petitioners say that to be an arbitrary as well as an illegal act, on the
part of the respondent/Corporation, liable to be set aside.
4. In 2020, in the wake of pandemic due to spread of COVID-19 Virus, a
general lockdown was experienced by the country, not to speak of the
State and the respondent Corporation. This has prompted a notification
to be published by the Government of West Bengal dated May 6, 2020.
By dint of the same the "Board of Administrators" was appointed, for
functioning of the respondent no. 3/Corporation, for the reason of
inability to hold election of "Mayor-in-Council", upon expiry of the
statutory life of the previous "Mayor-in-Council", due to pandemic and
lockdown.
5. The "Board of Administrators" has introduced the impugned Circular
dated July 22, 2022, by dint of which it had modified and changed the
Recruitment Regulations pertaining to the writ petitioners as mentioned
above.
6. The method of recruitment vide the said notification dated July 22, 2022,
was directed to be
(i) By direct recruitment through West Bengal Municipal Service
Commission - 60% of the post of total cadre strength of Assistant
Engineer in Civil/Mechanical/Electrical wing.
(ii) By promotion from the posts borne in the common cadre of Sub-
Assistant Engineer (Civil/Mechanical/Electrical); - the remaining 40%
posts of total cadre strength of Assistant Engineer in
Civil/Mechanical/Electrical wing shall be filled up by way of promoting
from amongst the Sub-Assistant Engineer in respective stream by
selection through the West Bengal Municipal Service Commission,
subject to fulfilment of the conditions stipulated therein.
7. Such change of service conditions of the writ petitioners has made them
aggrieved that the same is to the detriment of their interests and as such
to the vital right of life as guaranteed under which the Constitution of
India. They have sought for adequate relief in these cases.
8. Respondent No. 3 is the main answering respondent in these cases, that
is, the Kolkata Municipal Corporation. It has contested the matter by
filing written affidavits-in-opposition. The respondent No. 3 has
categorically stated that promotion is a phenomenon, typically within the
power and authority of the employer and the employees would not have
any vested right to the same. As such, according to the said respondent,
the writ petitioners' case may not have any legs to stand. Thereafter,
they have maintained that the modified Recruitment Regulations vide
Circular dated July 22, 2022, is a valid piece of document amenable to
no change thereto, on the ground of legitimacy and legality. It has been
accorded approval by the State Government as per provisions under
Section 604 of the Kolkata Municipal Corporation Act, 1980 and thus is
sacrosanct. It has stated further that the "Board of Administrators"
which was functioning at the relevant point of time, by dint of an order of
the Government of West Bengal dated May 6, 2020, and for the reason of
the "Mayor-in-Council" having not been elected within due time to resume
office after expiry of the term of the previous "Mayor-in-Council", due to
the extraordinary situation which arose in view of the pandemic - had
ample power and authority granted under law to the same, to carry on
any function of the respondent Corporation, as its business would
require. It is stated that the power to frame rules is the statutory power
bestowed upon the Corporation and in this case upon the "Board of
Administrators" which has utilised the same by issuing the Circular
dated July 22, 2022. The appointment of the "Board of Administrators"
or its functioning cannot be put to any question in view of its legal origin
and justifiable functioning. The respondent Corporation has obviously,
sought for that the writ petitions, as above, be dismissed.
9. Mr. Bikash Ranjan Bhattacharyya, learned Senior Advocate has
represented the writ petitioners being assisted by Mr. R.N. Chakraborty
and Ms. Tanushree Das. Mr. Bhattacharyya has put forth about alleged
illegality and non-maintainability of the impugned Circular dated July
22, 2022, in his arguments. Mr. Bhattacharyya has pointed out to the
administrative order issued by the Government of West Bengal dated
May 6, 2020, at the outset. He has pointed out from there that as the
"Mayor-in-Council" could not have been elected in the wake of COVID-19
pandemic, the "Board of Administrators" was appointed by the State
Government, only to combat the exigency of the situation, by providing
the essential services of the Corporation. He would say that a duty only
to provide restraining and preventive measure against the dangerous
disease is bestowed on the "Board of Administrators", apart from
providing other essential public utility services, which are inevitable and
unavoidable in the day-to-day life of the people in the society. In absence
of the elections being held, "Mayor-in-Council" could not have been
appointed, after expiration of the office of the earlier "Mayor-in-Council".
But the works of eminent necessity to be carried on by the respondent
Corporation could not have stalled for any reason whatsoever. This has
prompted the State Government to appoint the "Board of Administrators"
for such limited purposes and period, he says. Mr. Bhattacharyya would
point out that the notification issued by the State Government dated May
26, 2020, would show the purpose for appointment of "Board of
Administrators", to be not only for containing infections but also for
rendering essential services, including water supply, drainage and
sewerage, solid waste, community health, environmental sanitation and
public safety. Ensuring municipal administration in Kolkata, in the
manner as contained in the Kolkata Municipal Corporation Act, 1980,
would be the motto of functioning of the "Board of Administrators", as per
the notification dated May 6, 2020. Thus, Mr. Bhattacharyya would
submit that only the administrative disposition is the lookout for the
"Board of Administrators" and it has not been granted any power to
discharge the legislative functions of the Corporation, as is enshrined in
the Act of 1980. Therefore, according to Mr. Bhattacharyya, it was
beyond the authority and power of the "Board of Administrators" to
change the Recruitment Regulations, in any manner whatsoever, not to
speak about by promulgation of a Circular, that is, dated July 22, 2022.
10. Mr. Bhattacharyya has relied on various provisions of the 1980 Act, to
submit the statute has provided for specific categories of powers and
functions of the Corporation, which are likely to be discharged by the
same. He has referred to Sections 28, 29 and 30 of the said Act of 1980,
to state that there are certain general powers of the Corporation as well
as obligatory and discretionary functions of the same, as enumerated in
the afore stated provisions of law. Additionally, he would refer to Section
20 of the said Act of 1980, to state that the Corporation would have the
power to frame Regulations for recruitment, the method of it, regarding
requisite classifications and the terms and conditions of service of the
employees appointed including pension, gratuity and provident fund.
The Regulations so framed by the Corporation shall provide also for
discipline, control and conduct of officers and employees constituting the
establishment of the Corporation as provided under Section 21 of the
said Act. Mr. Bhattacharyya has termed this regulation making power of
the Corporation as its legislative power. It is stated that the purport of
the notification of the State Government dated May 6, 2020, creating
"Board of Administrators" by dint of the same, would not be to bestow
such legislative powers of the Corporation to the "Board of
Administrators", as the same would involve policy decision by a regular
body, effect of which is to last for long. He indicates that the "Board of
Administrators" was appointed only to take care of the exigency which
arose as regards the functioning of the Corporation, day in and day out,
in view of the wide spread pandemic.
11. Mr. Bhattacharyya would rely on the Division Bench judgment of this
Court in Sharad Kumar Singh vs. The State of West Bengal & Anr. reported in
2020 SCC OnLine Cal 1528, to emphasise as regards the scope and ambit of
the power and function of the "Board of Administrators", created by the
State government vide notification dated May 6, 2020.
12. In the said judgment of Sharad Kumar Singh (supra) the Hon'ble Division
Bench was concerned with the question of constitutional validity of the
administrative order of the State, dated May 6, 2020, and whether the
respondent Corporation could take shelter under the provisions of
Section 634 of the Kolkata Municipal Corporation Act, 1980 to perceive
the situation as a "difficulty" falling within the fold of difficulties
envisaged in the said provision of law. After an enriching discussion by
the Court, the constitutionality of the notification dated May 6, 2020, of
the State government has been upheld, in that case. In doing so, the
Court has at some place dealt with the scope of functioning of the "Board
of Administrators", as promulgated vide the said notification. According
to Mr. Bhattacharyya the Court has held that the "Board of
Administrators" as was constituted under the impugned notification of
May 6, 2020, was to continue in a caretaker capacity. He says that the
Court has acknowledged that the Corporation has a vital duty to
discharge to resist the spread of pandemic and for providing measures
for its containment and to restore public health and safety and societal
hygiene. For this the Corporation must run under the duly formulated
body, if not a duly elected "Mayor-in-Council", then under the "Board of
Administrators", in absence of the "Mayor-in-Council".
13. Thus, according to Mr. Bhattacharyya the "Board of Administrators" so
appointed as a stop gap authority to discharge only the essential,
imminent and inevitable functions of the Corporation, would not have
the authority to legislate Regulations overturning the previous conditions
thereof or else, as its in the present case, the same would be nullity in
the eye of law and a gross abuse of power by the "Board of
Administrators", arbitrary in nature and thus illegal and liable to be set
aside.
14. In addition to the point as raised by the writ petitioners as enumerated
above, on their behalf the other point taken in this case is of prospective
application of the modified Recruitment Regulations, that is, vide circular
dated July 22, 2022, if at all it stands the tests of legality and
maintainability.
15. Mr. Chakraborty would say that the vacancy arose in the posts of
"Assistant Engineers" for which the writ petitioners have a right to come
under the zone of consideration and be considered for promotion, arose
much prior to the date of promulgation of the impugned circular, that is,
dated July 22, 2022. It has stated that the vacancies arose on different
dates but definitely not beyond the date of promulgation of the said
notification, only prior to the same. Under such circumstances, he says
that the Circular dated July 22, 2022, shall have only prospective
application, if any, starting from the date of coming into force of the said
notification. The vacancies which arose prior to the same and to which
the writ petitioners are eligible to come to the zone of consideration
should have been filled up following the stipulations in the earlier
Recruitment Regulations, that is, dated August 10, 2020. In support of
his contention he has relied on the following judgments, which are as
follows:-
(i) Nirmal Chandra Bhattacharjee & Anr. reported in (1991) Supp 2 SCC
363,
(ii) State of Rajasthan vs. R. Dayal & Ors. reported in (1997) 10 SCC 419,
(iii) Kajal Dutta Roy & Ors. vs. Anil Kumar Joshi & Ors. reported in (2017) 3
CHN 479.
16. Mr. Chakraborty would further submit for the writ petitioners that even if
the law has been settled as enumerated in the judgments as referred to
above, and the employer is still desirous to bring in any change in the
existing service conditions of employees, it should have been mandatorily
extended an opportunity of hearing before any such change is brought
into force. He says that such mandatory hearing at the stage before
modification of the existing service conditions has been profoundly
enumerated by different constitutional Courts. In support of his such
submission, he has referred to the three Judges Bench decision of the
Hon'ble Supreme Court reported in (1989) 1 SCC 764 (H.L Trehan & Ors. vs.
Union of India & Ors.)
17. On the grounds as above the writ petitioners have sought for adequate
relief of the process of promotion to be initiated immediately for the writ
petitioners in terms of the Recruitment Regulations as was existent vide
Notification dated August 10, 2020.
18. The Kolkata Municipal Corporation, as stated above have come up to
contest the instant case by disputing and challenging the contentions
and prayers of the writ petitioners. Mr. Alak Kumar Ghosh has
represented the Kolkata Municipal Corporation. Mr. Ghosh has
categorically submitted that as per the scheme of the said Notification,
the entire functioning of the Corporation would devolve upon the "Board
of Administrators", pursuant to its appointment vide notification dated
May 6, 2020. Mr. Ghosh would elaborately refer to various Clauses
mentioned in the said notification to buttress his such submission. He
would raise objection to the submission made on behalf of the writ
petitioners that the Board of Administrators would not have any
authority to promulgate the modified Recruitment Regulations, as an
essential part of its functioning. He would emphasise that to meet the
exigency the "Board of Administrators", would have ample power to act
within the purview of the statute and under its authority, in whatever
manner it would deem necessary to do. Mr. Ghosh would not pretermit
to mention that constitutional validity of the Notification dated May 6,
2020, has already been upheld by the Hon'ble Division Bench in the case
of Sharad Kumar Singh (supra).
19. Mr. Ghosh would refer to the stringent condition prevalent during the
spread of pandemic in the State. He would say that a greater member of
manpower to work at the grass root level would have been necessary to
tackle and resist the extreme unnatural and unprecedented situation,
which arose pursuant to the lockdown. It necessitated revision of the
staff structure to accommodate efficient ground level workforce. This
exigency has prompted the "Board of Administrators" to take steps for
change of the Recruitment Regulations, which he says, is well within the
authority and power of the "Board of Administrators".
20. So far as the right of the writ petitioners is concerned, Mr. Ghosh is of
the opinion that they would not have any right to promotion. They may
have a right to come to the zone of consideration and take part in the
process of promotion but that too is within the administrative domain of
the employer to undertake a process of promotion as per the requirement
of business. Mr. Ghosh would say that it is only imaginary and
farfetched for the writ petitioners to allege any mala fide intention of the
employer, not to initiate the process at the moment of creation of the
vacancies and very naturally that would have depended upon
multifarious factors and administrative convenience of the employer. So
far as the ground made up by the writ petitioners and the prayer of them
are concerned, according to Mr. Ghosh, those would not be maintainable
and the present writ petitions should be dismissed. During his
arguments Mr. Ghosh has relied on a judgment reported in (2023) 3 SCC
773 (State of Himachal Pradesh & Ors. vs. Raj Kumar & Ors.) on the
proposition that there is no rule of universal application to the effect that
vacancy is most necessarily to be filled on the basis of Rules which
existed on the date on which the vacancy arose. The Court in the same
has upheld the justification shown by the respective authority for not
filling up the vacancies that arose prior to the amendment of the
respective Recruitment Rules, that is, the policy decision of the authority
to restructure the cadre by creating additional posts and also providing
for direct recruitment by amending the rules.
21. Mr. Ghosh has sought for dismissal of the writ petition.
22. The human clan was within the clutches of the dreadful virus, which had
hauled pandemic and as if brought the life at a halt, pursuant to the
lockdown introduced to arrest spread of it. This has been a worldwide
phenomenon at a point of time and the State was no exception.
Lockdown had largely affected the State's functioning also, compelled it
to dwell on its baseline functionaries only, for the purpose to maintain
the basic regulatory disposition. However, during this period, the typical
works of the respondent Corporation achieved a different dimension
altogether. As it is an authority under the Constitution of India,
formulated and dedicated for maintenance of public health, in the wake
of unprecedented health hazard, faced by people, its due and proper
functioning towards this cause, gained utmost importance.
23. The time spoken about is March 2020 onwards. The term of office of the
Mayor-in-Council of the respondent Corporation had ended almost
simultaneously with the outbreak of pandemic and introduction of the
State wise lockdown. The prevailing conditions incapacitated the
respondent Corporation to conduct fresh elections as no conglomerate of
a large number of people was possible, at that time. On the other hand
the herculean task of maintaining public health and other ancillary
functions were to be discharged by the said respondent, that too, with
much more promptitude, accuracy and efficiency, in the wake of the
deadly virus. Neither the respondent Corporation nor the State could sit
back, in such an emergent situation. The State came forward and in
exercise of the statutory power, had appointed the "Board of
Administrators", vide its notification dated May 6, 2020.
24. The constitutional validity of the same was challenged in Court, but was
upheld, vide Court's verdict in Sharad Kumar Singh's case (supra). That is,
however, not a subject matter of this case. The petitioner's challenge is
with regard to the functioning of the "Board of Administrators". The
"Board of Administrators" started functioning pursuant to the notification
dated May 5, 2020 and vide a Circular dated July 22, 2022, it had
modified the Recruitment Regulations of the Corporation, as was
prevalent then. By dint of the said modification, the mode of appointment
of the Assistant Engineers were changed and varied from that existed
earlier. Assistant Engineer is the promotional post of the Sub-assistant
Engineer, to which cadre, the writ petitioners belong. We will see how
such mode of recruitment was changed and what such change would
imply. But before that this Court would look into the scope of functioning
of the said "Board of Administrators" under the notification dated May 6,
2020. If it is found that the "Board of Administrators" has exceeded its
jurisdiction within which it was authorised to function, while adopting
any modification to the Recruitment Regulations, the Court further may
not be required to go in to the other questions raised on merit of this
case and for want of jurisdiction by the "Board of Administrators" to
promulgate the modified Recruitment Regulation, the same would be
liable to be set aside.
25. The "Board of Administrators" came into functioning, a date after the 5
years tenure of the elected Mayor-in-Council ended. The special
arrangement has been made as the civic elections cannot be held during
the lockdown. So, till a new Council is formed, the "Board of
Administrators" would function to ensure that civic essential services are
not impeded in the city which has, as a matter of fact referred the
highest number of containment zone in the State, at the relevant point of
time. In the notification dated May 6, 2020, mention has been made of a
letter dated April 22, 2020, of the West Bengal State Election
Commission. It opined that considering the situation of global pandemic
the measures have been taken for containment by the Government /local
self-Government and in such a situation a process of election including
stages like nomination, campaign, organising polls, counting of votes
could not have been possible. It has also opined that an election process
involving a large number of people during different phases of the process
would not be practicable or advisable at that point of time. The Election
Commission as above concurred with the view of the State Government
that situation would not be conducive for an election to be held. The
opinion as above has been cited in the said notification dated May 6,
2020.
26. The said notification has also specifically narrated about the specific
works to be done by the respondent Corporation under the statutory
mandate contained in Chapter XXIX of the Kolkata Municipal
Corporation Act, 1980 as well as the Disaster Management Act, 2005 and
the Epidemic Diseases Act, 1897, and also the several guidelines issued
by the Central Government and the State Government from time to time
during COVID-19 and lockdown period, directed to address
condemnation and spread of pandemic and providing measures for
containment of the same. The other relevant portion of the said
notification would be as follows:-
"AND WHEREAS the State Government is of the opinion that in view of the
pandemic of COVID-19 and various restrictions imposed within the territorial
limits of the said Corporation, exceptional circumstances have arisen regarding
postponement of the election to the said Corporation and to give directions for
exercise of all the powers and duties under the provisions of the Act and any
rules or regulations made thereunder, including for effective implementation of
the orders and directions issued by the Appropriate Government (s) under the
Disaster Management Act, 2003 and Epidemic Diseases Act, 1897.
AND WHEREAS it is necessary and expedient in public interest public safety,
public health and law and order to provide for effective measure for compliance
of the municipal administration in Kolkata in the manner contained in the said
Act, not only for the containing infections but also for rendering essential
services, including water supply, drainage and sewerage solid waste community
health, environmental sanitation and public safety.
AND WHEREAS the State Government is of the opinion that since no election can
be held for the time being after expiry of the term of office of the Councillors,
difficulties, will arise in giving effect to the provisions of the said Act during the
period commencing 8th May, 2020 till the first meeting of the Corporation is
held after a general election.
AND WHEREAS it would be expedient in the public interest to constitute and
appoint a Board of administrators to ensure municipal administration in
Kolkata in the manner contained in the said Act not only for the containing
infections and taking measures to combat COVID-19, 1ike insulating the
community from transmission of the disease but also for rendering essential
services and civic services, including water supply, drainage and sewerage, solid
waste, community health, environmental sanitation and public safety till the
elections are conducted and the first meeting of the Corporation after a general
election is held and further to facilitate seamless transition with a continuity in
administration of the said services and thereby difficulties in giving effect to the
provisions of the said Act will stand removed.
AND WHEREAS the constitution and appointment of a Board of Administrators is
also necessitated for the effective implementation of the orders and directions
issued by the Appropriate Governments under the Disaster Management Act,
2005 and Epidemic Disease Act, 1897.
AND WHEREAS having regard to the supervening public equity the State
Government finds it absolutely necessary to invite the power conferred under
Section 634 of the said Act which enables the State Government to issue an
order for removal of difficulty read with the executive power of the State
concerned by the Constitution of India to constitute and appoint a Board of
Administrators for the said Corporation.
NOW THEREFORE in the exceptional and extraordinary circumstances existing
at present to ensure continuity of functioning of the said Corporation for
providing all emergency and normal public utility services in terms of the said
Act and, for effective implementation of the orders, directions issued under the
Disaster Management Act, 2005, Epidemic Disaster Act, 1897 COVID-19,
Regulations and other laws from time to time the Governor in exercise, power of
the State conferred by the Constitution of India is pleased to constitute and
appoint a Board of Administrators (hereinafter referred to an the 'Board' of the
said Corporation with effect from 8th May, 2020 till the first meeting of the
Corporation is held after a general election. The Board shall have power(s) and
functions as vested in the municipal authorities and the following persons shall
be the members of the Board......."
27. Therefore, primarily, for the purpose of "combating the exceptional and
extraordinary circumstances", existing at the point of time and in the
teeth of the same to ensure continuity of functioning of the corporation
"for providing all emergency and normal public utility services in terms of
the said Act" and also for effective implementation of the orders,
directions issued under the other statutes as mentioned above, the said
"Board of Administrators" was formed. From the very expressions
employed in the notification dated May 6, 2020, to form the "Board of
Administrators", it is well perceivable that the purpose for formation of
such Board was not anything perennial or permanent but to act at a time
when in one hand the "Mayor-in-Council" could not have been elected and
in the other hand the Corporation, beyond its usual disposition, had to
plunge and thrust to a great extent, for containment of a contagion and
secure public health and life. Keeping in mind the primacy of the object
for which the "Board of Administrators" was appointed as stated above,
the submission made on behalf of the respondent Corporation giving
additional emphasis to the part of the said notification of May 6, 2020,
that "to give directions for exercise of all the powers and duties under the
provisions of the Act", has to be assessed. One cannot lose sight of the
fact that those words are qualified in the notification itself, by the other
words "for effective implementation of the orders and directions issued by
the appropriate government(s) under the Disaster Management Act, 2005
and the Epidemic Diseases Act, 1897."
28. The elementary rule of interpretation would be reading and perceiving
the provision as a whole and to understand it contextually. One can
proudly borrow the words of Justice Krishna Iyer that "A policy oriented
interpretation when a welfare legislation falls for determination, especially
in the context of a developing country, is sanctioned by principle and
precedent and is implicit in Article 37 of the Constitution, since the judicial
branch is, in the sense, part of the State. So it is reasonable to assign to
"damages" a larger, fulfilling meaning" [in the context of the case], in the
case of Organo Chemical Industries and Anr vs UOI and Others reported
in (1979) 4 SCC 573. The Court had propounded a policy oriented,
contextual, larger and fulfilling meaning to be ascribed to the text. A
salutary rule well established is that the intention must be found by
reading the statute as a whole. The general words "to give directions for
exercise of all the powers and duties under the provisions of the Act",
should be given a restricted meaning bounded by the other expressions
"for effective implementation of the orders and directions issued by the
appropriate government(s) under the Disaster Management Act, 2005 and
the Epidemic Diseases Act, 1897", as the earlier takes its meaning from
the later expressions. On a careful reading of the said notification, one
can hardly find any manifested intention that the earlier be given a
broader meaning than the latter requires. A provision cannot be
interpreted in isolation or read or understood partially. Consistency of
the earlier, with the context or subject matter, is the inferable
understanding which is to be conferred to the whole text, unless a
contrary intention is apparent. The principle being applied in the case in
hand, the obvious conclusion can be arrived at, that scope of functioning
by the "Board of Administrators" is limited to the implementation of the
statutory provision, to arrest and combat spread of contagion. It is
necessarily for the imminent and emergent purposes.
29. On bare reading of the notification to implement a "Board of
Administrators", by the State Government, should predominantly suggest
the purpose and scope of jurisdiction of the "Board of Administrators" to
be specified and bounded towards exercise of powers and duties
conferred under the different statutes, upon the Corporation, towards
maintenance of public life, health and security.
30. It is necessary here to have a look to the nature of duties which law
provides for a Corporation to discharge. Broadly the functions of the
Corporation can be divided into two folds, firstly, the power to discharge
executive functions in implementation of various statutory duties and
functions and secondly, the legislative function to provide Rules. There
are general powers of the Corporation as also obligatory and
discretionary functions. Those are enumerated respectively in Section 28
(General Powers), Section 29 (Obligatory Functions), Section 30
(Discretionary Power) of the Kolkata Municipal Corporation Act, 1980.
Separate provisions have been maintained in Section 470 to 489
enumerating the functions of the Corporation in restraining of infection.
Chapter XXX would provide within Sections 490 to 523 regarding duties
and powers of the Corporation as to the environment sanitation and
public safety. There are other powers also of the Corporation
enumerated under different chapters of the Act of 1980. However, the
above noted provisions are required mention here, for the reason that it
is relatable to the purpose of constitution of the "Board of Administrators"
vide the notification dated May 6, 2020.
31. In contrast of the power to be implemented for public health and safety,
the Corporation also has the power to make rules and regulations and
provisions thereof along with ancillary provisions have been provided in
the Act of 1980, under Section 20 of the Act and Chapter XXXVI (from
Section 600 to 609). Corporation would have the power to make
regulations in discharge of its legislative functions as per the provision
under Section 20 and Section 602 of the said Act. According to the same
it would have the power to promulgate regulations for recruitment and
terms and conditions of service including pension, gratuity and provident
fund and also for discharging its functions under the said Act being not
inconsistent with the provisions of the Act and Rules made thereunder.
32. The Court notes that the "Board of Administrators" has neither been
defined in the Act of 1980 nor has any provision been made therein for
its appointment or functioning.
33. The reference may be made Section 14 (3) of the West Bengal Municipal
Act, 1993, which is stated as follows:-
"14. Constitution of Board of Councillors.
*************
(3) In a municipal area newly constituted, the State Government may
appoint all the members of the Board of Councillors for a period not
exceeding six months from the date of the notification under which such
municipal area is constituted and the general election shall follow
thereafter."
34. Reference may also be made to the relevant provision of the West Bengal
Valuation Board Act, 1978. In terms of Section 2 (1) (aa) thereof,
"Administrator or Board of Administrator" has the same meaning as in
Sub-section 3 of Section 14 of the West Bengal Municipal Act, 1993.
35. The reason for discussing as above is to understand the scope and ambit
of functioning of the "Board of Administrators". It is seen that the
purpose of its appointment/constitution is only temporary and until and
unless the elected members resume office. It is also discussed before,
that the purpose of appointment of the "Board of Administrators"
pursuant to notification dated May 6, 2020, is temporary and not a
permanent feature. Creation of a body temporary in nature, would
always justify discharge of certain duties which are imminent in view of
certain exigency. This extraordinary measure is not to be taken to
perform any action which are of regular or perennial nature, which the
parent body would have to otherwise perform, in due discharge of its
duty.
36. Promulgation of a regulation in supersession of the other would be a
policy matter to be decided, pursuant to the long term and short term
goals of the said concern. The scope and ambit of functions of the
"Board of Administrators", would not be to consider any long term goal to
be discharged by the parent body, the Corporation, as is revealed from
the above discussions. No doubt, the circular under challenge, that is
dated July 22, 2022, has substantially curtailed the scope of promotion
for the present writ petitioners. Previously, when it has been 85% of the
promotional posts, to be filled up by departmental feeder cadre
candidates, pursuant to the impugned circular as above, the same has
been reduced to 40%. The circular has not revealed any reason therefore.
No doubt, to frame a policy, the authority may not have to show any
reason. However, an abrupt change in such policy, without any sound
foundation, would amount to gross arbitrariness of the entire process
when it would be negatively impacting a large portion of the workforce
that was under a different policy until that point and reasonably
expected to be considered for promotion into those vacancies. Also that,
it will result in the Recruitment Regulation taking effect de novo. In the
absence of a legally elected "Mayor-in-Council," the "Board of
Administrators" would have the authority to execute and improve the
Respondent/Corporation's policies, maintain the current workflow, and
move it forward. However, it would not have the authority to alter the
policy decisions made by a statutory body, such as the Corporation.
37. On the premises as above, the Court reaches to the obvious finding and
conclusion that, the circular dated July 22, 2022, is an arbitrary
exercise, dehors the power and authority of law by the said "Board of
Administrators". The writ petitioners have challenged the legality and
propriety of the said circular in the present writ petition, though no
specific prayer to that effect has been made. In that event this Court
finds no impediment in dealing with the same and pass necessary order
as regards the same. Hence, the same is liable to be set aside.
38. On the discussions as made above the Court finds that the writ petition
should be allowed.
39. Writ petition Nos. WPO No. 2626 of 2022 with GA 1 of 2023, WPO No.
2629 of 2022, WPO No. 2631 of 2022, and WPO No. 2632 of 2022 with
GA 1 of 2023 are allowed with the directions as mentioned below:-
(i) Impugned Circular dated July 22, 2022, is set aside.
(ii) The concerned respondent may proceed to initiate a process
for filling up the vacant posts of Assistant Engineers by
giving promotion to the eligible departmental candidates in
accordance with the rules which has prevailed prior coming
into force of the illegal circular dated July 22, 2022, if it
thinks so fit and proper.
40. Writ petition Nos. WPO No. 2626 of 2022 with GA 1 of 2023, WPO No.
2629 of 2022, WPO No. 2631 of 2022, and WPO No. 2632 of 2022 with
GA 1 of 2023 are disposed of, along with connected applications pending,
if any.
41. Urgent Photostat certified copy of this judgment, if applied for, be given
to the parties upon compliance of all formalities.
RAI Digitally signed by RAI
CHATTOPADHYAY
CHATTOPADHYA Date: 2024.05.10
Y 10:10:52 +05'30'
(Rai Chattopadhyay, J.)
Tudu/p.a
