Ataur Rahaman vs State Of West Bengal & Ors

Abhijit Gangopadhyay, J

During the pendency of the appeal the appellant Ataur Rahaman expired on 13th October, 2017. Subsequently his son filed one substitution application and by an order of this Court dated 1st May, 2018 the original appellant's son namely Sahin Aktar has been substituted in the place and stead of the said Ataur Rahaman.

The background of the case is as follows.

Ataur Rahaman was engaged as a Samprasarak of Nur Mohammad Biswas Smrity Madhyamik Siksha Kendra (MSK, in short, hereafter).

One agreement, as was usually entered into by and between the Managing Committee of an MSK and Samprasaraks, was entered into by and between Ataur Rahaman and the above MSK for a period from 1st September, 2008 to 30th April, 2009. When this engagement of Ataur Rahaman was done in the year 2008 the Government Order bearing No. 5087(36)-PN/O/1/O-6 2003 dated 27th October, 2006 issued by the Panchayat and Rural Development Department of the State of West Bengal was in existence.

According to the above Government Order ( said G.O., in short, hereafter) dated 27th October, 2006 the Panchayat Samity was to supervise the engagement of Siksha Sahayika/Sahayak. Siksha, Sanaskrati and Krira Sthayee Samity of Farakka Panchayat Samity in its meeting dated 19th June 2009 took a decision for engagement of Ataur Rahaman on June 29, 2009 i.e. after expiry of Ataur's contractual period which had expired on 30th April, 2009.

Ataur previously filed one writ application being W.P. No. 3190 (W) of 2010 as he was not getting any remuneration as Samprasarak of the MSK and by order of Court he was paid the honourarium for the period from 01.09.2008 to 30.04.2010.

Ataur filed a second writ application being W.P. No. 4771 (W) of 2012 claiming further payment & salary after 30.04.2010 till the date of the writ petition and month by month thereafter. The second writ application being W.P. No. 4771 (W) of 2012 was dismissed by this Court on 24th February, 2017 which has given rise to the present appeal.

On perusal of the memo of appeal it is found that the grounds are not happily drafted however, Ataur assailed the order of the writ Court dated 24th February, 2017.

The matter has been heard at length and the appearing parties were directed to file their written notes of submission which they have done.

The appellant submitted that the decision of cancellation of the Sthayee Samity was never intimated to his father. The State respondents have said, it was intimated to the M.S.K. Whether it was intimated or not and to whom, if intimated, becomes a disputed question of fact and this Court cannot go into this disputed question sitting in a writ jurisdiction. On perusal of the available records (including the written notes of argument filed by the appearing parties) it is found that Ataur was engaged by the M.S.K. in September 2008 and the Sthayee Samity took their decision for Ataur's engagement after nearly 10 months i.e. on 29th June, 2009. Such post-facto approval was wholly illegal as the said G.O. contained no such provision. Such decision of the Sthayee Samity taken in June 2009 was cancelled by the Sthayee Samity itself in October 2009. The decision of the Sthayee Samity was wholly illegal as it granted post-facto approval to Ataur's engagement which it could not do because of the said G.O. The Sthayee Samity under the said G.O. had no power except verifying the particulars sent by the MSK to the Sthayee Samity. Panchayat Samity was the appropriate authority for giving approval of appointment to Samprasaraks of MSK. This direction of the Government as contained in the said G.O. was never followed. The MSK has not been able to give any reply in this respect. Ataur's second writ application contains another contract between the Managing Committee of the MSK and Ataur for the period from 1st May 2009 to April 2010. This is also illegal as again the said G.O. was ignored. The MSK played a dubious role in this regard. It is held that the engagement of Ataur was void ab initio. The appellant has not disclosed any such document before this Court wherefrom it could be known that procedure laid down by the Government in respect of engagement of Samprasaraks in MSK's was followed. The writ Court dismissed the second writ application on the ground that contractual period of Ataur was not extended after April 2009.

If a person claims that he is working as a Samprasarak in an MSK and fails to satisfy the Court that his such engagement was made following the direction of the State Government, the State Government can never be made liable to pay any remuneration to the said person.

The writ application being W.P. No 4471 (W) of 2012 which gives rise to the present appeal was wholly misconceived. Ataur or his legal heirs are not entitled get any money on any account in respect of Ataur's service as a Samprasarak from the State Government.

The appellant has referred to two judgments.

One of them is reported in (2010) 1 WBLR (Cal) 380 (Union of India and others -versus- Subhojit Dutta and Others) for the proposition that for not providing any opportunity of hearing the order of termination was bad. Here, in this matter, the illegality is so prominent and conspicuous and as from the writ petition (which was produced by direction of the Court and perused) it is found that nothing has been disclosed in the writ application to show that the direction given in the said G.O. was withdrawn or cancelled by the Government when Ataur was engaged by the MSK, no prejudice has been caused to the writ petitioner as even after granting opportunity of hearing no supporting document could have been filed by the appellant to show that the said G.O. was complied with before his engagement in the MSK.

The other judgment relied upon by the appellant reported in AIR 1984 Supreme Court 1271 (Liberty Oil Mills case) for the proposition that the order must have to be communicated to the affected party. It is already stated that this is a disputed question of fact and this Court will not decide this question in exercising writ jurisdiction in the Mandamus appeal. The writ Court also made no mistake in not undertaking such exercise to decide a disputed question of fact.

Therefore, in the facts and circumstances of the case this judgment of Supreme Court also cannot come to the aid of the appellant.

No merit is found in the appeal and the appeal is dismissed.

No costs.

(Abhijit Gangopadhyay, J.)

I agree.