(1.) This Rule is directed against Memo dated October 13 1980, issued by the Executive Officer of the Khardah Municipality directing the petitioner to hand over the charge as the re -employment proposal of the petitioner had been rejected by the State Government by Order dated July 28, 1980. The petitioner also challenges the legality and/or validity of the order dated July 28, 1980, whereby the Government rejected the proposal of reemployment of the petitioner with effect from August 1, 1980 for a period of one year. It appears that the petitioner was a permanent employee of the Khardah Municipality and the petitioner Was due to retire on superannuation on August 1, 1980 after attaining of 58 years as per the then existing service condition. The petitioner contends that before the age of superannuation, the Commissioners of the Municipality upon consideration of the meritorious service rendered by the petitioner for a pretty long time adopted a resolution to extend the service or the petitioner tor one year from August 1, 1980 to July 31, 1981. The petitioner contends that unfortunately through misconception, in the resolution it was also stated that the State Government should be moved tor getting approval or the said resolution. According to the petitioner, for such extension of the service or a Municipal employee in terms of the model rules as adopted by the Municipality and accepted by the State Government, it is not necessary to get approval of the State Government in the matter or extension of service. The petitioner also contends that the petitioner pointed out the then Chairman of the Municipality that the request for formal approval of the resolution taken for extension of the petitioner's service by one year was misconceived and the Chairman assured the petitioner that necessary rectification of that part of the resolution would be made but as the Municipality was superseded and an Executive Officer under Sec. 67A was appointed the proposed rectification of the Resolution was not made. The petitioner further contends that the right of the petitioner to continue in service for one year in terms of the resolution duly adopted and passed by the Commissioners of the Municipality, however, remained unaffected. The petitioner contends that although for the purpose of extension of the petitioner's service no approval by the State Government was necessary in law the State Government intimated the Executive Officer that the request for approval of the extension of service of the petitioner was rejected by the State Government., Accordingly, the Executive Officer asked the petitioner to hand over charge immediately. It is contended by the petitioner in the instant Rule that the petitioner's service was validly extended for one year with effect from August 1, 1980 and such extension did not depend upon the approval to be made by the State Government and as such rejection of the request of the Municipality to give approval of the extension already granted to the petitioner was immaterial and could not affect the right of the petitioner to continue in service. The petitioner contends that while the petitioner was continuing in service on the basis of such extension granted to the petitioner, the service condition of the Municipal employees was changed in terms of the amendment of the Bengal Municipal Act, and such amendment came Into force from April 2, 1981 and the age of superannuation of the Municipal employees has now been fixed at 60 years. The petitioner contends that accordingly the petitioner will retire on superannuation on July 31, 1982 on attaining the age of 60 years. It is also contended by the petitioner that the Municipality has also granted extension of service to some other employees of the Municipality without taking prior approval of the State Government but for reasons best known to the respondent the petitioner was singled out and the service of the petitioner was sought to be terminated on the footing that as the State Government refused to grant extension, the petitioner's Service must come to an end. The petitioners as a matter of fact, has given specific instances of such extension of service in respect of other employees of the Khardah Municipality.
(2.) Mr. Ganguly, the learned Counsel, appearing for the petitioner, has submitted that the State Government proceeded on a misconception by equating re -employment with extension of service. Mr. Ganguly submits that the concept of extension of service is completely different from the concept of re -employment. The question of re -employment arises when the contract of service or employment comes to an end but if extension is given to an employee the service does not come to an end but the period gets enlarged. He has relied on a passage from Stroud's Judicial Dictionary Volume 2 at page 982. It has been noted in the said dictionary by quoting a decision made in the case of Brooke v/s. Clarke reported in 1 B. & Ald page 399 that Extension' is a term properly used for the purpose of enlarging, or giving further duration to, any existing right, but does not import there -vesting of an expired right; that would not be an 'extension' but a re -creation'. Mr. Ganguly has also referred to a decision of the Mysore High Court made in the case of Shama Rao vs. State of Mysore reported in AIR 1963 Mysore at page 208 In the said case the Government, on being satisfied that a civil servant who had reached the age of superannuation, had a satisfactory record of service, extended hits period of service, according to rules framed by the Government in that behalf, but by a subsequent notification the Government recalled the previous order of extension without affording to the civil servant any of the opportunities guaranteed to him under Article 311 of the Constitution. The question arose as to whether or not the subsequent notification was patently wrong and was liable to be set aside. A Division Bench of the Mysore High Court held in the said case that where the Government had extended the service of a civil servant after reaching the conclusion that his record of service was satisfactory, the Government servant acquired the right to continue in service during the, extended period, unless he was removed from his post by process known to law. The Government after it had granted extension must treat the civil servant whose service had been extended as a civil servant whose tenure of service had not yet come to an end with the result that the civil servant had the same rights and the same privileges which he had before his service was extended. Mr. Ganguly contends that the facts of the instant case stand on a firmer footing. In the instant case the extension was granted before the petitioner had actually attained the age of superannuation and such extension was within the powers of the Municipal Commissioners under the model rules adopted by the Municipality and accepted by the State Government under the provisions of the Bengal Municipal Act. The net result was that when the date of superannuation came, the petitioner remained a Municipal employee as before and as such there could not have any occasion for re -employment of the petitioner on attaining the age of superannuation. Referring to the aforesaid passage in the Stroud's Judicial Dictionary, Mr. Ganguly contends that extension does not envisage re -vesting of an expired right. Such re -vesting will not be extension but will be re -creation. In this connection Mr. Ganguly has also drawn the attention of the Court to Annexure 'K' of the Supplementary Affidavit filed by the petitioner.
(3.) The said Annexure 'K' is a copy of the decision of the Government as communicated by the Special Officer and Deputy Secretary, Government of West Bengal, Municipal service to the Commissioner of Jalpaiguri relating to extension of service of one Shri Dip Tshering Lepcha who was Head Clark cum -Accountant of the Kalimpong Municipality. The Deputy Secretary informed the Commissioner of Jalpaiguri in reply to the Commissioner's correspondence with the Municipal Service Department of the Government of West Bengal that it was decided by the Government that re -employment in service and extension of service were not the same. Extension of service of an ex -existing incumbent in the same post could not he termed as new appointment. It simply meant extension of the period of the appointment already sanctioned and as such the same did not come under the purview of Sec. 66(s) (ii) of the Bengal Municipal Act 1932. Under the model Rules regarding appointment of Municipal Officer.; and servants when adopted by the Municipality, the Municipal Commissioners at a meeting were competent to sanction such extension without prejudice to the provisions of the Act, but in the case of re -employment the incumbent could not be allowed to draw his remuneration at the same rate as was drawn by him immediately before superannuation. Mr. Ganguly states that the said decision of the State Government is in conformity with the definition of extension and the powers given to the Municipal Commissioners under the model Rules and as a matter of act completely supports the case made by the petitioner in the instant Rule. Mr. Ganguly submits that unfortunately without any justification a different view was sought to be made by the State Government and also by the Respondents in the case of the petitioner.