Rama Dutta and Another vs State of West Bengal

S.B. Sinha, J.—This application is directed against a judgment and order dated 20.12.99 passed by the West Bengal Administrative Tribunal, whereby and whereunder the petitioners'' application for absorption was dismissed. In view of the fact that the learned Tribunal has considered the factual matrix of the matter in great details, it is not necessary to reiterate the same.

The petitioners are stated to be working against a consolidated salary of Rs. SO/- and Rs. 20/- for a period of 20 years and 30 years respectively. According to the petitioners, in terms of certain policy decisions adopted by the State, they were entitled to be regularised in their services. Upon analysing the pros and cons of the circulars in question the learned Tribunal held that the only contention raised before it that the petitioners come within the purview of "such other categories of workers", in the circular letter dated 3.8.79 unacceptable stating:

In the present case, it is established that the special programme has been undertaken by the State Government under the guideline of government of India are required to be implemented with the help of the voluntary attendants. The purpose is to utilise the local human resources like Dais for meeting the need in that locality by giving some sorts of economic support. It has specifically been mentioned that such attendants will discharge their duties as voluntary attendants and receive a monthly remuneration and not salary. It is found that the petitioners have also disclosed in their applications that they were engaged on a fixed consolidated remuneration''s of Rs. 50/- and Rs. 20/- respectively p.m.

Mr. Samanta, learned counsel appearing on behalf of the petitioner submits that the job in question being perennial in nature the petitioners should have been directed lo be absorbed. According to the learned counsel, in any view of the matter, as the petitioners herein had been continuing in services for a long time, it is a fit case where, keeping in view the underlying principles contained in Section 25F of the Industrial Disputes Act. they should have been directed to be regularised in services, Reliance in this connection has been placed upon a judgment in F.M.A. 1160 of 1996 (State of West Bengal & Ors. vs. Nani Gopal Jana & Ors.) disposed of on 24.11.97

A finding of fact has been arrived at by the learned Tribunal to the effect that the petitioners were working on a special programme. As indicated hereinbefore, the learned Tribunal has held that the special programme was lo be undertaken by the State Government under the guideline of the Government of India, and which in turn was required to be implemented with the help of voluntary attendants. Where there exists rules governing recruitment of persons framed under the terms of proviso appended to Article 309 of the Constitution of India, in view of a catena of decisions of the Apex Court as also the Division Bench decision and Full Bench decision of this court, there cannot be any doubt whatsoever that a prolonged continuation of service by itself could not give right lo an employee for being absorbed in service. This aspect of the matter has been considered by the Apex Court in J. & K. Public Service Commission & Ors. vs. Dr. Narinder Mohan & Ors., reported in (1994) 2 SCC 630. Dr. Arundhati Ajit Pargaonkar vs. State of Maharashtra & Ors., reported in AIR 1995 SC 962. State of M.P. & Anr. vs. Dharam Bir, reported in (1998) 6 SCC 165 and several other Supreme Court decisions which have been considered recently by a Division Bench of this court in W.B.E.C.S. Corporation Limited vs. Md. Sarif recorded in 200(1) CHN 240. This aspect of the matter has also been considered by several Division Benches of this court in W.B. Board of Secondary Education vs. State of West Bengal & Ors., reported in 1997(1) CLJ 165 and Director of Public Instructions of West Bengal & Ors. vs. Dr. Ashish Pal & Ors., reported in 1998(2) CHN 241 as also a Full Bench decision of this court in Debasis Dutta vs. State of West Bengal & Ors., reported in 1998(2) CLJ 1. Apart from the fact that Article 14 provides for a positive concept, only because some persons have been granted appointment illegally and contrary to the recruitment rules, court will not pass an order which would amount to perpetration of Illegality. So far as the submission of Mr. Samanta to the effect that the job being perennial, the petitioners should have been regularised, is also of no moment in view of the fact that for the purpose of abolition of contract labour and similar other aspects, statutory provisions exist in violation whereof the court cannot direct absorption of the employees who have been engaged in service for rendition of a articular job in respect of a special programme and not for the purpose of grant of appointment in any civil post. So far as the decision of the Division Bench in State of West Bengal & Ors. (supra) is concerned, the same is not only contrary to several Division Bench decisions of this court as also the Apex Court of the country, but is directly contrary to and inconsistent with the decision of the Apex Court in Madhyamik Siksha Parishad. U.P. vs. Anil Kumar Mishra & Ors., reported in AIR 1994 SC 1638. The submission of Mr. Samanta, therefore, cannot be accepted.

For the reasons aforementioned and particularly in view of the finding of fact arrived at by the learned Tribunal, we are of the opinion that no case has been made out for interference with the impugned judgment. The application is dismissed. However, there cannot be any doubt that this order shall not preclude the respondents herein from continuing to take work from the petitioners on the same terms and conditions if their services are otherwise required. Xerox certified copy of the order be supplied on priority basis.

H. Banerjee, J.

I agree.