PRATIMA SARKAR Vs. STATE OF WEST BENGAL

JUDGEMENT

(1.) The present writ petition has been filed praying inter alia for a Writ of Mandamus commanding the respondents to consider the case of the petitioner to get absorbed in the regular establishment of Typist in the office of the respondent No.4, Sub-Divisional Land Reforms officer, Katwa and further commanding the respondents to allow the petitioner to work as Typist in the office of the respondent No.4 accordingly. There is further a prayer for quashing the impugned order being Annexure "H" to the writ petition. It is stated in detail that the petitioner was working for more than required number of days as Typist in the office of the respondent No.4 and yet she has not been absorbed in the regular establishment. There is allegation that the respondents sought to terminate the service of the petitioner and in such circumstances, the petitioner filed a previous writ petition which was disposed of by Mahitosh Majumdar J. directing the petitioner to make a representation within 7 (seven) days from the date of passing of the order and also directing the respondents to consider the said representation within 4 (four) weeks after giving an opportunity of hearing and passing a reasoned order and communicate the same to the petitioner. The said communication is Annexure 'H' to the present writ petition. Being aggrieved again, the petitioner has come to this Writ Court by challenging the aforesaid communication.

(2.) The writ petition is contested by the respondent Nos. 1 to 4 by filing affidavit. It is disclosed therein that the petitioner was engaged as a contingent on 13th August, 1986 on daily wage basis for 3 (three) days in a week upto 12.9.86. It is further disclosed that in the year 1986, the petitioner worked for 62 (sixty-two) days and this period of work was never continuous for 3 (three) days in a week and in the year 1987 she worked as contingent mainly for 238 days and thus functioning was also not continuous. In the year 1988, however, the petitioner worked for 250 days on daily wage basis. It is claimed that the petitioner worked for 3 (three) days or 5 (five) days a week indicating that a Typist is not permanently required in the office of the Sub-Divisional Land Reforms Officer at Katwa. There is a reference of the Government Order No. 1700-Emp. dated 3.8.79 and also Government Order No. 1650-Emp. dated 28.8.80. According to the writ petitioner, the petitioner is entitled to get the benefit provided that the applicant must be in service on 3.8.79 and that the applicant must be engaged in perennial type of work and the applicant must be engaged for the continuous period of more than 3 years at least 240 days in each calendar year. The calendar year will be presumed from January to December. It is also disclosed that the job of "Typist" in the office of the respondent No.4 is not permanent in nature and the same will reveal from the different letters of engagement addressed to the writ petitioner from time to time that she worked not continuously but always with certain breaks, in view of the fact that there is no sanctioned post of Typist in the S.L.R.O. Office at Katwa. The marginal notes will also corroborate the fact that the petitioner was daily rated contingent worker on "No work, no pay basis" for specific days in a week. Her term of engagement was thus extended from time to time in that perspective with regular breaks and according to the requirements and the said fact is a corroborative evidence of irregular requirement of Typist.

(3.) Mr. Bidyut Kumar Banerjee, learned Advocate appearing for the petitioner has argued at length that the petitioner was engaged as Typist on 13th August, 1986 after rendering 2 (two) years voluntary service and was styled on as contingency workers on daily wage basis. From time to time, the petitioner's service as Typist styling as contingency worker was extended and last extension was made by Memo No. 1378 / LR dated 7th of December, 1988 requiring the petitioner to work as such upto 7th of March, 1989. If the year reckoned, according to him, from the date of her official appointment with effect from 13th August, 1986, then the petitioner has worked for more than 2 (two) years having had in service more than 240 days a year. In 1987, the petitioner rendered service for 240 days which will appear from the Attendance Register and further the petitioner worked for 250 days in 1988. The nature of work and the continuity of work will indicate that the job is of perennial nature and the claim of the petitioner cannot be negatived. He has drawn the attention of the Court that the writ petitioner applied for a regular post according to the recruitment notice issued by the Collector, Burdwan and the petitioner's said application was duly forwarded by the respondent No.4 to the Appropriate Authority treating the petitioner as departmental candidate as would be evident from Annexure "D" to the writ petition. The petitioner did not make any attempt to get her name sponsored by the Local Employment Exchange. The order of rejection by the Sub-Divisional Officer in terms of the Memo No.1430 dated 28th February, 1989 is contrary to law and in fact it will transpire from the materials on record hat the petitioner has fulfilled all the conditions and the petitioner is otherwise entitled to reliefs as prayed for.