BISWAJIT BOSE Vs. STATE OF WEST BENGAL

JUDGEMENT

(1.) ALL the six writ petitioners were employed with the respondent no. 2, the West Bengal Central co-operative Land Development Bank Ltd. as supervisors (Civil) under N. C. D. C.-III, storage project for a period of one year on contract service term on a consolidated pay of Rs. 1600/- per month and they are still working in that capacity. The petitioners applied for employment against the advertisements published in the Statesman dated the 9th June, 1985 and the 20th January, 1988 inviting application from candidates holding at least Diploma in Civil Engineering and having adequate experience in supervision and construction of Reinforced Concrete Framed Typed buildings including sanitary, water supply and road works as well as preparation of bills, estimates etc. The petitioners were called for interview and after selection they were offered employment as Supervisers (Civil)under National Co-operative Development Corporation-Ill (NCDC-III)storage project, for a period of one year on contract service term on a consolidated pay of Rs. 1600/- per month. They joined the head office of the bank at 25-D, Shakespeare Sarani, Calcutta-78 on different dates in between January, 1988 and January, 1989. They were thereafter posted in different districts. Since then they have been working continuously without any break in the aforesaid capacity as Supervisors (Civil) and although the initial term of their appointment was for one year yet the same was extended from time to time, and sometimes such extension was made even after the expiry of the term with retrospective effect. It has so happened that on a good number of occasions the petitioners or some of them had worked for sometimes as usual after the expiry of the term without any formal extension. At the time of their appointment the petitioners also required inter alia to submit release order from their 'present' employer, if any, at the time of joining and to execute an agreement containing the terms and conditions of the employment. Annexure- to the writ petition is a Memo dated the 10th January, 1989 issued by the managing Director of the Bank (respondent no. 2) extending the tenure of appointment of the petitioner no. 1, Shri Biswajit Bose for one year with effect from 5th January, 1989 with the existing terms and conditions. The said Annexure also contains a copy oaf the Memo dated the 9th February 1990 whereby extension was given to the petitioner no. 6, Shri Rathin chakraborty for a period of 3 months with effect from 27th January, 1990 on the existing terms and conditions of his service, his earlier term having expired on the 26th January, 1990. By the said Memo the petitioner was also asked to convey his consent sufficiently before the expiry of the above term of extension.

(2.) BE that as it may. the petitioners on 23rd November, 1990 made a joint representation to the Managing Director of the Bank ventilating their grievance and requesting for regularising their services and for grant of regular scale of pay applicable to regular staff of the Bank. By an order dated the 15th March, 1991 the Managing Director of the Bank increased the consolidated pay of the petitioners with effect from the 1st January, 1991 at the rate of 20% subject to a maximum of Rs. 300/- per month. It was also stipulated that such enhancement would be deemed to be an ad hoc allowance in addition to the existing ad hoc allowances. The pay of the petitioners accordingly stood raised to Rs. 1900/- per month. Then again by an order under Memo No. 898/32 dated the 3rd July, 1991 the Managing Director of the Bank informed that the Board of Directors of the Bank had approved that the consolidated pay of the petitioners who were working in the Bank on contract basis was increased with effect from 1st May, 1991 by Rs. 500/- per month and the petitioners would have to make a fresh agreement with the Bank and the changes of emoluments would be given effect on execution of fresh bond. The petitioners have been aggrieved by this order of the Bank so far it relates to execution of fresh agreement bond and not in respect of the enhancement of their emoluments by Rs. 500/ -. It is the contention of the petitioners that the petitioners are to be regarded as on regular service of the Bank since after the expiry of the initial term of appointment and by the impugned order dated the 3rd July, 1991 requiring the petitioners to execute fresh agreement bond the respondents are trying to bring back the petitioners under contract service once again which is exfacie illegal, arbitrary, malafide and unresonable. Accordingly they have filed this writ petition for various reliefs including a declaration that the petitioners are in regular employment under respondent no. 2 and are entitled to all consequential benefits of service attached to the post of Supervisor (Civil) as well as for a writ of mandamus, commanding the respondents to regularise the services of the petitioners and also for rescinding and/or withdrawing the purported order dated the 3rd july, 1991 so far as it directs execution of fresh agreement bond, etc.

(3.) THE writ petition is contested by the respondent no. 4, who is the managing Director of the West Bengal Central Co-operative Land Development Bank. It is the contention of the respondent inter alia that the petitioners are on purely contract service under NCDC-III project scheduled to expire in June, 1992 and this project is financed by the World Bank and on the expiry of the project the Bank will not be in a position, to continue the appointment of the petitioners, firstly because there would be no job for the petitioners to perform and secondly because the resources of the Bank would not permit the Bank to bear the expenses of maintaining the employment of the petitioners. It is also the contention of the respondent no. 4 that this writ petition is not maintainable because the Bank being a co-operative Society registered under the West Bengal Co-operative Societies act is neither 'state' nor 'authority' within the meaning of the terms under Article 12 and under Article 226 of the Constitution and as such no writ lies against it. It may be mentioned here that by an interim order this court directed that the execution of the agreement by the petitioners in terms of the order dated 3rd July, 1991 would not prejudice the rights and contentions of the parties in the proceeding and an interim order was also granted restaining the respondents from terminating the services of the petitioners without the leave of the court.