Tapan Ghosh vs State Of West Bengal & Ors.

This writ application is filed by the petitioner challenging non-action of the respondents in not regularizing the service of the petitioner as a Group-D

Staff of Chowdhurihat Gram Panchayat under Dinhata-II Panchayat Samiti, District Cooch Behar. According to the petitioner, the post in Group-D

category was vacant in the aforementioned Gram Panchayat and as he had been working since the year 2002 onwards, he is entitled to be

regularized.

On an earlier occasion, this Court had directed the State respondents to file an affidavit. A report in the form an affidavit has been filed and the

petitioner was allowed to file an exception to the said report. Having heard the submissions on behalf of the petitioner and having gone through the

records of the case, this Court does not find any reasons for regularization of the petitioner as a Group-D staff of the same Gram Panchayat. It

appears from the writ petition that the Pradhan of Chowdhurihat Gram Panchayat issued an appointment letter dated May 22, 2006 to the petitioner

engaging him as a casual worker of the said Gram

Panchayat. By a letter dated April 26, 2013, and lastly by a letter dated July 16, 2014 the Block Development Officer Dinhata-II Block was informed

about this engagement by the Pradhan of the Chowdhurihat Gram Panchayat. Thereafter, no further communication between the Pradhan of the said

Gram Panchayat and the Block Development Officer Dinhata-II Block is on record. It does not appear from the appointment letter that the petitioner

was engaged through a proper recruitment process as per the rules prescribed. The petitioner was engaged as a casual worker on the basis of a

decision of the general body of the said Gram Panchayat. Moreover, it does not appear from the records, that the engagement of the petitioner was

approved by the Block Development Officer Dinhata-II Block. There is also no document to show that the District Panchayat Rural Development

Officer, Cooch Behar had officially approved such engagement of the writ petitioner. No document has been produced before this Court. Under such

circumstances, the petitioner’s prayer for regularization of his service as a Group-D Staff of the Chowdhurihat Gram Panchayat under Dinhata-II

Development Block, cannot be permitted in law.

Reference may be made to the decision in SECRETARY, STATE OF KARNATAKA AND OTHERS VERSUS UMADEVI (3) AND OTHERS

reported in (2006) 4 SCC 1. The relevant portions of the above decision is quoted below:-

“45. While directing that appointments, temporary or casual, be regularised or made permanent, the courts are swayed by the fact that the person

concerned has worked for some time and in some cases for a considerable length of time. It is not as if the person who accepts an engagement either

temporary or casual in nature, is not aware of the nature of his employment. He accepts the employment with open eyes. It may be true that he is not

in a position to bargainâ€"not at arm’s length-since he might have been searching for some employment so as to eke out his livelihood and accepts

whatever he gets. But on that ground alone, it would not be appropriate to jettison the constitutional scheme of appointment and to take the view that a

person who has temporarily or casually got employed should be directed to be continued permanently. By doing so, it will be creating another mode of

public appointment which is not permissible. If the court were to void a contractual employment of this nature on the ground that the parties were not

having equal bargaining power, that too would not enable the court to grant any relief to that employee. A total embargo on such casual or temporary

employment is not possible, given the exigencies of administration and if imposed, would only mean that some people who at least get employment

temporarily, contractually or casually, would not be getting even that employment when securing of such employment brings at least some succour to

them.

After all, innumerable citizens of our vast country are in search or employment and one is not compelled to accept a casual or temporary employment

if one is not inclined to go in for such an employment. It is in that context that one has to proceed on the basis that the employment was accepted fully

knowing the nature of it and the consequences flowing from it. In other words, even while accepting the employment, the person concerned knows the

nature of his employment. It is not an appointment to a post in the real sense of the term. The claim acquired by him in the post in which he is

temporarily employed or the interest in that post cannot be considered to be of such a magnitude as to enable the giving up of the procedure

established, for making regular appointments to available posts in the services of the State. The argument that since one has been working for some

time in the post, it will not be just to discontinue him, even though he was aware of the nature of the employment when he first took it up, is not (sic)

one that would enable the jettisoning of the procedure established by law for public employment and would have to fail when tested on the touchstone

of constitutionality and equality of opportunity enshrined in Article 14 of the Constitution.

46.      . . . .

47.      When a person enters atemporary employment or gets engagement as a contractual or casual worker and the engagement is not

based on a proper selection as recognized by the relevant rules or procedure, he is aware of the consequences of the appointment being temporary,

casual or contractual in nature. Such a person cannot invoke the theory of legitimate expectation for being confirmed in the post when an appointment

to the post could be made only be following a proper procedure for selection and in cases concerned, in consultation with the Public Service

Commission. Therefore, the theory of legitimate expectation cannot be successfully advanced by temporary, contractual or casual employees. It

cannot also be held that the State has held out any promise while engaging these persons either to continue them where they are or to make them

permanent. The State cannot constitutionally make such a promise. It is also obvious that the theory cannot be invoked to seek a positive relief of

being made permanent in the post.â€​

The next submission of Mr. Ali is that the Government of West Bengal, Finance Department, published a notification dated February 25, 2016, No.

1107-F(P), by which certain benefits were given to the casual, contractual and daily rated workers. According to Mr. Ali, his client ought to be given

of the benefits of the said circular. Ms. Chaitali Bhattacharya, learned Advocate appearing on behalf of the State respondents has categorically stated

in the report filed by the Block Development Officer under Dinhata-II Development Block and has contended that the petitioner was not appointed

against any sanctioned post nor was he appointed with the permission of the appointing authority as required by the circulars.

It also does not appear from any document that the petitioner was appointed as a casual worker in any sanctioned post. As such, if this appointment is

a private arrangement between the employer and the employee then the provisions of the said circular will not apply. Despite repeated calls none

appears on behalf of the Prodhan of Chowdhurihat Gram Panchayat to assist this Court. Under such circumstances, without going into the merits as to

whether the said circular is applicable in case of the petitioner or not.

I direct the petitioner to submit a detailed representation before the District Panchayat and Rural Development Officer, Cooch Behar within a period

of three weeks from date with emphasis as to how he would be entitled to the benefits of the said circular or any other circular governing the field as

mentioned hereinabove. The said authority shall consider the petitioner’s case in the light of the said circulars issued by the Government of West

Bengal.

The District Panchayat and Rural Development Officer, Cooch Behar shall be at liberty to take a hearing of the petitioner as also all other interested

parties including the Prodhan of the said Gram Panchyat and he shall pass a reasoned order within a period of four weeks from the date of receipt of

such representation of the petitioner. I have not entered into the merits of the claim of the petitioner and all points are kept open. With the above

observations and discussions, this writ petition is thus disposed of. There will be, however, no order as to costs. Urgent Photostat certified copy of this

order, if applied for, be given to the parties on priority basis.