AMALENDU MUSTAFI Vs. STATE OF WEST BENGAL

JUDGEMENT

(1.) Since issues are identical, the matters are taken up for hearing analogously. In these writ petitions, the petitioners, who were members of the West Bengal State Electricity Board Piece Rated Meter Reading and Billing Staff Association, have challenged the orders passed by the respective authorities whereby their claim for absorption in a regular post in Gram Panchayat have been negated. It appears that the petitioners, pursuant to an agreement entered into between WBSEB and the Panchayat authorities were appointed as meter readers on an experimental basis. It also appears that payment of wages were made by the Panchayats to the petitioners directly. After they were disengaged they moved a writ petition being W.P. 18025 (W) of 1999 (The West Bengal State Electricity Board Piece Rated Meter Reading and Billing Staff Association and others vs. State of West Bengal and others) for a direction upon the WBSEB for absorption. The said writ petition was dismissed on 3rd December, 2002. Aggrieved an appeal being F.M.A. No. 582 of 2003 was filed which was disposed by an order dated 28th February, 2006 by granting liberty to make a representation to the State Government and more particularly to the Panchayat Department for regularisation and if such representation was made it should be considered in the light of the available applicable legal provisions. Pursuant to the said order passed by the Division Bench, an order was passed on 11th September, 2006 by the authorities. Challenging the said order, a writ petition being W.P. 4993 (W) of 2007 was filed and by order dated 2nd August, 2010 the order dated 11th September, 2006 passed by the authorities was set aside by directing the authorities to comply with the directions contained in the order dated 27th January, 2006. Submission is though the Division Bench had granted liberty to the petitioners to furnish a representation to the State Government and if such representation was made, the Panchayat Department of the Government was directed to consider, however, it is submitted that the impugned order proceeds with regard to their absorption in WBSEB. Moreover, the impugned order does not take note of the finding in the judgment passed in W.P. 18025 (W) of 1999 that the petitioners were the workers of the Panchayat. Accordingly prayer is the authorities may be directed to consider and appoint the petitioners as it has been found that they were panchayat employees.

(2.) Learned advocates appearing on behalf of the respondents submit that the meter reading done by the petitioners was at the request of WBSEB and not by the Panchayats. The work was experimental in nature and as the Scheme came to an end pursuant to lapse of agreement they were terminated. Submission is no document has been shown to demonstrate that they had worked continuously from 1999. On the contrary a few documents have been annexed to the writ petition which reveal that they were engaged on a couple of occasions. Since reliance has been placed on the scheme in the notification dated 22nd October, 2003 and as the said scheme postulates that those who were engaged prior to March 1996 would be considered and as the petitioners were engaged after 1998 they do not come within the Scheme. That apart assuming the Scheme is applicable, since they were appointed on ad hoc or temporary basis during 1999 and though no evidence has been shown that they had worked at least three years, assuming they were engaged for a number of years, however, in that event they have to participate in the selection test and compete with other candidates sponsored by an employment exchange. Moreover, as appointments have to be made against sanctioned posts in accordance with law, as the maximum age limit regarding recruitment is 40, as the petitioners had crossed the age bar, they are not entitled to be appointed. Since employment in Gram Panchayat is governed by the West Bengal Panchayat (Recruitment and Conditions of Service of Gram Panchayat Karmee) Rules, 1995 which lays down for the determination of the number of posts and procedure for appointment to the post of Gram Panchayat Karmee, appointment, if any, shall have to be made in accordance with the said rules.

(3.) Admittedly, as evident from the records, the petitioners were engaged occasionally by the Panchayats pursuant to an agreement entered into by the WBSEB and Panchayats for reading electric meters and payments were made by the Panchayats. On the strength of such engagement the petitioners claim regularisation of their appointments. It is evident that the Division Bench while disposing of the appeal, being F.M.A. No. 582 of 2003, had granted liberty to the petitioner to file a representation and had directed the Panchayat Department to consider the matter in the light of the available applicable legal provisions. Now the question is whether the petitioners are entitled to be regularised. There is no dispute that the petitioners were engaged. Such engagements were made as and when situation demanded. In fact such engagements were made occasionally and there is no averment that they were engaged on a long term basis and against sanctioned posts. Moreover, even assuming that they were engaged on a long term basis and had worked as meter readers for years, which is not evident from the records, in my view since 1995 Rules lay down the procedure for recruitment, as the petitioners were appointed considering the exigency of the situation and on a part time basis, no order can be passed. Assuming the Scheme under the notification dated 22nd October, 2003 is applicable and assuming they were appointed on an ad hoc or temporary basis after 13th March, 1996, which they were not, and have worked for at least three years in such event also they shall have to participate in the selection process to be held by the Selection Committee and have to compete with others including the sponsored candidates. However, since most of them have crossed the upper age limit of 40 years for appointment as postulated under the statutory rules regarding appointment, the petitioners are not entitled to the orders as prayed for. Moreover, in view of the law laid down in the judgments of the Apex Court in Secretary, State of Karnataka and others vs. Umadevi and others, 2006 4 SCC 1, State of U.P. and others vs. Rekha Rani, 2011 AIR(SC) 1893 Union of India and others vs. Arulmozhi Iniarasu and others, 2011 AIR(SC) 2731 State of Rajasthan and others vs. Daya Lal and others, 2011 2 SCC 429 and Brij Mohan Lal vs. Union of India and others, 2012 6 SCC 502, relied on by the learned advocates for the respondents, as appointments were made contrary to the 1995 Rules and as mere continuation of service by a temporary or ad hoc or daily wage employee does not confer the right to be absorbed in service, even if claim is made that he was in employment for number of years and as part time workers are not entitled to seek regularisation as appointments were not against the sanctioned posts, therefore, direction cannot be issued for absorption and/or regularisation and thus, no order can be passed on the writ petitions. Hence, the writ petitions are disposed of.