Calcutta High Court (Appellete Side)
Swapan Kumar Hota & Ors vs The State Of West Bengal & Ors on 12 September, 2024
Author: Hiranmay Bhattacharyya
Bench: Hiranmay Bhattacharyya
IN THE HIGH COURT AT CALCUTTA
CONSTITUTIONAL WRIT JURISDICTION
APPELLATE SIDE
Before:
The Hon'ble Justice Hiranmay Bhattacharyya
WPA 18 of 2021
Swapan Kumar Hota & Ors.
Vs.
The State of West bengal & Ors.
For the Petitioners : Mr. L.K. Gupta, Sr. Adv.
Mr. Soumen Kumar Dutta
Mr. Subham Dutta
Sk. Sayan Uddin ....... advocates
[
For the State : Mr. Indranil Roy
Mr. Tapas Kumar Mondal ...... advocates
For the Contai Municipality : Mr. Nilanjan Adhikari ...... advocate
For the Private Respondent : Mr. Soumya Majumder
Mr. Suryaneel Das
Mr. Chiranjit Pal ....... advocates
Reserved on : 02.09.2024
Judgment on : 12.09.2024
Hiranmay Bhattacharyya, J.:-
1. Thirty three casual workers of a Municipality have jointly filed this writ
petition praying for issuance of a writ of mandamus to command the
Director of Local Bodies to grant approval to the appointment of the
petitioners from their respective dates of appointment; to cancel the
approval letter issued in favour of the private respondents and also to set
aside all consequential effect.
2. The petitioners claim that they were appointed on casual basis on diverse
dates during the period 1992 to 2000 in Contai Municipality (for short "the
Municipality"). They further claim that the private respondent nos. 7 to 31
were also appointed in the said municipality during the period 1991 to
2000. The petitioners claim that their names along with the names of the
respondent nos. 7 to 31 were included in the list of 268 casual/ daily rated
workers who were engaged for not less than 10 years as on 01.04.2010 and
have rendered service for not less than 240 days each year. The petitioners
further claim that they are entitled to get approval from the date of their
respective dates of appointment in view of the decision of the Hon'ble
Supreme Court in Secretary, State of Karnataka vs. Uma Devi (3)
reported at (2006) 4 SCC 1. Petitioners alleged that the Director of Local
Bodies (for short "DLB") accorded approval of appointment of the private
respondents vide letter dated 10.02.2020. Petitioners allege that though the
petitioners and private respondents were all appointed as casual workers
and doing same nature of work, the action of the DLB is discriminatory as
the petitioners' appointments were not approved when the appointments of
similarity situated casual workers were approved.
3. Being aggrieved, by the aforesaid action of the respondents, the petitioners
have approached this Court.
4. Mr. Gupta, learned Senior Counsel appearing in support of the writ petition
contended that the writ petitioners along with the private respondents and
several others were appointed as casual workers in the Municipality. He
further contended that the appointments of the private respondents were
approved in terms of the Order dated 28.06.2004 issued by the Department
of Municipal Affairs, Government of West Bengal. He submitted that since
the petitioners are similarly placed as that of the private respondents and
were appointed more or less at the same period of time, the appointment of
the petitioners ought to have been approved from their respective dates of
appointment. He further contended that the petitioners were also appointed
in a pay scale attached to the posts in which they were appointed. Mr.
Gupta contended that the appointments of the petitioners were not
approved only on the ground that there is no vacancy in the sanctioned
posts. Mr. Gupta referred to the information furnished by the competent
authority under the provisions of the Right to Information Act, 2005 (for
short "the 2005 Act") vide letter dated 17.10.2023 in support of his
contention that there were no sanctioned vacant post in the year 1994. By
placing reliance upon the said information, Mr. Gupta contended that
appointments of private respondents and several others were approved
though there was no sanctioned vacant post at the relevant point of time.
5. Mr. Gupta contended that the act of regularising one group of employees
and not regularising the other group is discriminatory and violative of
Article 14 of the Constitution of India. He further contended that lack of
vacancy in sanctioned post cannot be a ground to deny regularisation. In
support of the aforesaid contentions, Mr. Gupta placed reliance upon the
following decisions of the Hon'ble Supreme Court of India:
(i) Order passed in SLP (C) No. 7898/ 2020 on July 3, 2023 in the case of
Raman Kumar & Ors. vs. Union of India and others.
(ii) Order passed in Civil Appeal No(s) 2795-2798 of 2018 on March 13,
2018 in the case of Ravi Verma and ors. vs. Union of India and others.
6. Mr. Roy, learned advocate appearing for State seriously disputed the
contentions of Mr. Gupta. He contended that the petitioners were engaged
on different dates and have been receiving consolidated pay of Rs. 6,600/-
per month. He further contended that the petitioners never received salary
in any scale of pay. He submitted that the petitioners were paid by the
Municipality from its own fund. He submitted that the Board of Councillors
of a Municipality cannot create posts without prior sanction of the State
Government. He concluded by submitting that 46 number of posts created
by the Board of Councillors vide resolution dated 21.03.2000 are not valid
posts and, therefore, the appointments of the petitioners in such posts
cannot be said to be valid.
7. Mr. Adhikari learned advocate appearing for the Municipality submitted that
the petitioners are all working in the Municipality for more than 10 years
and have rendered service for at least 240 days each year. He further
submitted that under a Memo dated 10.02.2021 the Chairperson of the
Board of Administrators, Contai Municipality forwarded a proposal to the
Director of Local Bodies and Ex-Officio Special Secretary to the Government
of West Bengal for creation of additional posts and sought permission to fill
up those posts so that the petitioners can be absorbed from the date of their
respective engagement.
8. Mr. Majumder learned advocate appearing for the private respondents
submitted that the private respondents were appointed by the Municipality
and their appointments have been duly approved by the DLB vide Memo
dated 10.02.2020 in view of the order dated 28.06.2004. He submitted that
the petitioners do not stand on the same footing as that of the private
respondents.
9. Heard the learned advocates for the parties and perused the materials
placed.
10. Record reveals that it was brought to the notice of the Government of West
Bengal, Department of Municipal Affairs that a considerable number of
appointments/ promotion were made in a number of Urban Local Bodies
against sanctioned vacancies holding erstwhile scale of Rs. 380-910/- and
below during the period from 01.01.1986 to 13.07.1994 without obtaining
prior approval of the Government and in absence of approval of the
Government, the Urban Local Bodies are facing difficulties relating to the
finalisation of pension cases of the retired employees. The Government after
due consideration issued a Memo dated 28.06.2004 wherefrom it appears
that the Government was pleased to decide that the approval of the
Government for such appointments/ promotions for the aforesaid period,
made against the vacancies in sanctioned posts of the concerned Urban
Local Bodies, shall be deemed to have been accorded.
11. After going through the Memo dated 28.06.2004, this Court finds that only
the appointments/ promotions made during the period 01.01.1986 to
13.07.1994 against the vacancies in sanctioned posts shall be deemed to
have been accorded.
12. In reply to the request for approval of appointments of the private
respondents, DLB applied the Memo dated 28.06.2004 and issued a Memo
dated 10.02.2020 informing the Chairman of the Municipality that their
appointments are deemed to have been approved.
13. Petitioners claim that their appointments ought to have been approved by
applying the aforesaid Memo dated 28.06.2004.
14. In order to decide the issue as to the applicability of the Memo dated
28.06.2004, this Court has to consider whether the petitioners were
appointed against vacancies in sanctioned posts at the scale of pay and
during the period as specified in the said Memo.
15. In the Supplementary Affidavit affirmed on 11.09.2023, the petitioners have
disclosed the appointment letters issued in their favour by the Chairman of
the Municipality. The said appointment letters appear to have been issued
sometimes in the month of March, 2000.Such letters record that the
appointments were made pursuant to the resolution no. 10(iii) of the
meeting of the Board of Councillors held on 21.03.2000 as Group "D"
employee with effect from 01.04.2000. The letters further record that such
service is purely temporary and may be terminated without assigning any
reason thereof. It was also specifically stated therein that no scale of pay
will be give until the sanctioned order of the Government is received from
the concerned authority.
16. From Resolution no. 10(iii) of the meeting of the Board of Councillors held
on 21.03.2000 it is evident that the Chairman of the Municipality was
empowered to take appropriate steps for getting necessary approval of 46
number of Group "D" posts.
17. Creations of posts by the Municipality without the approval of the
competent authority of the Government cannot fall with the expression
"sanctioned posts". To the mind of the Court, the appointments of the
petitioners with effect from 01.04.2000 cannot be said to be against
vacancies in sanctioned posts.
18. The Government of West Bengal, Department of Municipal Affairs issued an
Order dated 23.04.2010 directing that casual/daily rated workers engaged
by various Local Bodies will be paid a remuneration of Rs. 6,600/- per
month and they will not be entitled to any other allowances.
19. The writ petitioners have admitted that they were receiving an amount of
Rs. 6,600/- per month in terms of the Government Order dated 23.04.2010
at the relevant point of time.
20. In view of the aforesaid discussion, this Court holds that the writ
petitioners were not appointed against vacancies in sanctioned posts at the
scale of pay and during the period stipulated in the Memo dated
28.06.2004. Therefore, the said Memo dated 28.06.2004 cannot come to
the aid of the petitioners.
21. In course of hearing, Mr. Roy placed a Memo dated 07.05.2009 issued by
the Department of Municipal Affairs whereby the Governor was pleased to
authorise the DLB to issue order according post facto approval of
appointments / promotions made by the Municipalities against sanctioned
vacancies holding erstwhile scale of pay of Rs. 380-910/- since revised to
4000-8850/- and below.
22. The said Memo dated 07.05.2009 also cannot come to the aid of the
petitioners as it has already been held that the petitioners were not
appointed against sanctioned vacancies.
23. Mr. Gupta would contend that the petitioners are similarly situated with
that of the private respondents as the appointments of the private
respondents at the relevant point of time were not against sanctioned
vacancies. To buttress such contention, Mr. Gupta placed strong reliance
on the informations furnished under the 2005 Act.
24. The information furnished by the SPIO and Executive Officer of the
Municipality vide letter dated 17.10.2023 states that there were no sanction
vacant post in the year 1994 and there existed 3 number of sanctioned
vacant posts since 1995-2000.
25. The writ petitioners have not disclosed the application made under the
2005 Act seeking information. The informations supplied as aforesaid are
only relatable to the informations sought for.
26. That apart, the petitioners have specifically admitted in the Supplementary
Affidavit affirmed on 13.01.2021 that vacancies are still lying in the Contai
Municipality. In the said affidavit, the petitioners have disclosed an
Employment Notification dated 02.12.2019 issued by the Municipality
inviting applications from eligible candidates to fill up vacant Group "D"
posts in the Municipality.
27. For all the above reasons, this Court is not inclined to lend much credence
to the information supplied vide letter dated 17.10.2023.
28. DLB applied the Circular/Memo operating in the field while holding that the
appointments of the private respondents are deemed to have been
approved.
29. Courts shall presume that official acts have been regularly performed. Onus
lies upon the writ petitioners to rebut such statutory presumption. It is for
the writ petitioners to plead and prove as to why the approval of
appointments in favour of the private respondents should be set aside.
Apart from the informations supplied under the 2005 Act, petitioners could
not produce any acceptable materials for this Court to accept the
contention of the petitioners that the private respondents were not
appointed against sanctioned vacancies. Petitioners cannot expect the
Court to make a roving enquiry in this regard. The prayer for setting aside
the approval of appointment of the private respondents is liable to be
rejected and the same thus stands rejected.
30. From the aforesaid discussions, it is crystal clear that the petitioners do not
stand on equal footing with the private respondents. Therefore, the
petitioners cannot claim equal treatment which was extended to the private
respondents. The petitioners have miserably failed to prove their allegation
of discrimination.
31. To the mind of this Court, the action of the respondents cannot be said to
be violative of Article 14 of the Constitution of India as argued by Mr.
Gupta.
32. In Uma Devi (3) (supra), the Hon'ble Supreme Court noted that there may
be cases where irregular appointments (not illegal appointments) of duly
qualified persons in duly sanctioned posts might have been made and the
employees have continued to work for 10 years or more but without the
intervention of Courts or of Tribunals. The Hon'ble Supreme Court held
that in such cases, the Union of India, the State Government and their
instrumentalities should take steps to regularise as an one time measure,
the service of such irregularly appointed, who have worked for 10 years or
more but not under cover of the orders of Court or of Tribunals.
33. In the light of the observation made hereinbefore, this Court holds that the
appointments of the petitioners cannot be said to be irregular for this Court
to apply the aforesaid proposition laid down in Uma Devi (3) to the case on
hand.
34. In Ravi Verma (supra), the Hon'ble Supreme Court after holding that the
appointments in the said reported case were only irregular one, directed the
authorities to regularise their service as per the decision of Uma Devi (3).
The facts of the said reported case is distinguishable and therefore, the
same cannot come to the aid of the petitioners.
35. In Raman Kumar (supra), the authorities after conducting an exercise in
pursuance of the judgment of Uma Devi (3) (supra) found that 65
employees were entitled for regularisation but regularised the service of 35
employees only. The Hon'ble Supreme Court in the facts of that case held
that the act of regularising the services of only 35 employees and not
regularising the services of other employees is patently discriminatory and
violative of Article 14 of the Constitution of India.
36. This Court has already held that the action of the respondents cannot be
said to be violative of Article 14 of the Constitution. Therefore, the decision
in Raman Kumar (supra) cannot be applied to the case on hand.
37. For all the reasons as aforesaid, this Court is of the considered view that
the writ petitioners could not establish any legal right in their favour to
compel the respondents to perform the public duty which they are legally
bound to perform.
38. Accordingly the writ petition stands dismissed. There shall be, however, no
order as to costs.
39. Urgent photostat certified copies, if applied for, be supplied to the parties
upon compliance of all formalities.
(HIRANMAY BHATTACHARYYA, J.)
(P.A.-Sanchita, Rinki)
