Calcutta High Court (Appellete Side)

Sumit Kumar Bhattacharya vs The State Of West Bengal & Ors on 6 September, 2024

Author: Hiranmay Bhattacharyya

Bench: Hiranmay Bhattacharyya

Form No. J. (2)
Item No.1


                  IN THE HIGH COURT OF JUDICATURE AT CALCUTTA
                        CONSTITUTIONAL WRIT JURISDICTION
                                 APPELLATE SIDE

                              HEARD ON: 06.09.2024
                            DELIVERED ON: 06.09.2024
                                    CORAM:
                  THE HON'BLE MR. JUSTICE HIRANMAY BHATTACHARYYA

                               W.P.A. 12575 of 2017
                                       With
                               IA No. CAN 2 of 2022

                            Sumit Kumar Bhattacharya
                                        Vs.
                          The State of West Bengal & Ors.

Appearance:-
Mr. Biswaroop Bhattacharya
Mr. Purnasis Bhuniya
                                                  .........For the Petitioner


Mr. Chandi Charan De, Ld. AGP
Mr. Anirban Sarkar                                 .....For the State

Mr. Tapash Kumar Bhattacharya
Mr. Aviroop Bhattacharya
                                                  .....For Dainhat Municipality
                                    JUDGMENT

(Judgment of the Court was delivered by HIRANMAY BHATTACHARYYA, J.)

1. The petitioner has prayed for setting aside the Memo dated September 26,

2014 issued by the Directorate of Local Bodies (for short "DLB), Government

of West Bengal in this writ petition. By the said Memo, the DLB held that the

approval of appointment of the petitioner cannot be accorded to for the post of

Accountant.

2. Pursuant to the Notification issued in the Bengali daily on February 24, 2012

inviting applications from eligible candidates for appointment to the post of

Accountant in Dainhat Municipality (for short, "Municipality"), the petitioner

applied for the said post. The petitioner participated in the selection process

and he was ultimately selected by the Selection Committee constituted by the

Municipality. The petitioner was placed at the top of the panel and the

Chairman of the Municipality sought for approval of such appointment from

the DLB. Alleging inaction on the part of the respondent authorities, the

petitioner approached this Court by filing a writ petition, being WP No.12761

(W) of 2014 wherein a Co-ordinate Bench of this Court, by an order dated May

14, 2014, directed the DLB to pass a reasoned order and to communicate the

same to the petitioner and the Chairman of the Municipality within the time-

limit specified therein. Pursuant to the said direction, the DLB after hearing

the parties, passed a reasoned order dated September 26, 2014 thereby

observing that the approval of appointment of the petitioner cannot be

accorded to for the post of Accountant.

3. The DLB in the said order observed that the age limit of the candidates for the

post of Accountant shall be between 18-37 years and the Municipality, while

issuing the employment Notification, fixed the age-limit between 18-40 years,

which was contrary to the provisions laid down in the rules. The DLB held

that the candidates for the post of Accountant beyond the age of 37 years

were ineligible for the post of Accountant in terms of the rules laid down in

that regard.

4. Mr. Biswaroop Bhattacharya, learned Advocate appearing for the petitioner

submits that pursuant to the Notification published in the newspaper, the

petitioner applied for the post of Accountant. It was mentioned in the said

Notification that the maximum age is 40 years as on January 1, 2012. He

submits that since the petitioner was within the age-limit stipulated in the

said advertisement, he applied for the post of Accountant and thereafter

participated in the selection process. He submits that the petitioner was

placed in the first position in the said panel and, therefore, the petitioner

ought to have been appointed in the said post.

5. Mr. Tapas Bhattacharya, learned advocate appearing for the Municipality

submits that the Government of West Bengal, Finance Department, Audit

Branch issued a Notification no.11653-F(P) dated December 30, 2011 thereby

fixing the upper age-limit as 40 years. He submits that such Notification

came into effect from January 1, 2012. He submits that in view of the

Notification dated December 30, 2011, the Municipal Authority published the

employment notification fixing the upper age-limit as 40 years.

6. Mr. Chandi Charan De, learned Additional Government Pleader submits that

the DLB after taking into consideration the provisions of the West Bengal

Municipal Employees Recruitment Rules, 2005 and after taking note of the

Rule 4(2) of the said rules observed that in case of direct recruitment for the

post of Accountant, the upper age-limit should be 37 years. He submits that

since the age of the petitioner as on the date of publication of the

advertisement was beyond 37 years, the petitioner was over aged and,

therefore, not eligible for appointment to the said post.

7. Heard the learned advocates for the parties and perused the materials placed.

8. It is not in dispute that the Municipality applied before the D.L.B. for

permission to fill up several posts including the post of Accountant vide letter

dated September 27, 2010 and the D.L.B. vide memo dated June 21, 2011

accorded permission for filing up the sanctioned posts including the post of

Accountant under the Municipality. It is also not in dispute that the Joint

Director of Local Bodies was also one of the members of the Selection

Committee constituted for the purpose of selecting the candidates for the post

of the Accountant.

9. Rule 4 of the West Bengal Municipal Employees (Recruitment) Rules, 2005

(for short, " the 2005 Rules") specifies the qualifications for various posts.

Clause 10 of the 2005 Rules deals with the post of Accountant. Sub-Clause

(b) deals with the qualification for the post of Accountant and it is stated

therein that in case of direct recruitment, the minimum age-limit for such

recruitment shall be 18 years.

10. Rule 4(2) of the 2005 Rules states that in all cases of direct recruitment,

excepting in the post of Secretary, Tax Collecting Sarkar and Teacher, the

upper age-limit shall be 37 years. Proviso thereto states that the provisions of

the West Bengal Service (Raising of Age Limit) Rules, 1981 shall apply.

11. The Government of West Bengal, Finance Department, Audit Branch in

exercise of power conferred by proviso to Article 309 of the Constitution of

India issued a Notification No.11653-F(P) dated December 30, 2011

wherefrom it appears that the Governor was pleased to make some

amendments in the West Bengal Services (Raising of Age limit) Rules, 1981.

The said Notification would be relevant for the purpose of deciding the issues

involved in this writ petition and for which the same is extracted hereinafter:-

"In exercise of the power conferred by the proviso to article 309 of the Constitution of India, the Governor is pleased hereby to make the following amendments in the West Bengal Services (Raising of Age limit) Rules, 1981,

published with this Department notification No. 10317-F dated the 31st December, 1981, as subsequently amended (hereinafter referred to as the said rules:-

Amendments In the said rules,-

(1) In sub-rule (2) of rule 1 for the words, figures and letters "the 31st December, 2011, substitute the words, figures and letters, "the 31st December, 2016."

(2) Where the upper age-limit for recruitment to any post or service is fixed at less than 32 years, such upper age-limit shall be raised to 32 years.

Provided that upper age-limit for the direct recruitment to all Group 'C' and Group 'D' posts shall be 40 years:

Provided further that where recruitment to any post or service is made in accordance with the West Bengal Regulation of Recruitment in State Government Establishments and Establishments under Public Undertakings, Statutory Bodies, Government Companies and Local Authorities Act, 1999 (West Ben. Act, XIV of 1999) and rules or notifications issued thereunder and not through the Public Service Commission, West Bengal, the upper age-limit shall be raised to 40 years."