GOPAL CHANDRA GHOSH Vs. STATE OF WEST BENGAL

JUDGEMENT

(1.) The present Writ petition at the instance of the petitioner Gopal Chandra Ghosh claiming to be a helper-cum-trailer driver of Teesta Mechanical Division, Siliguri under care of Executive Engineer Teesta Mechanical Division, Department of Irrigation of Waterways, Government of West Bengal seeks relief :- (a) A Writ in the nature of Mandamus and/or any other appropriate Writ or Writs, order or orders and/or direction or directions be issued commanding the respondents and/or each of them and/or their servants, agents or assigns to act and proceed in accordance with law by not giving any effect or further effect to the impugned Memo No. 6549/121-10/A dated 18th December 1989 issued by the Superintending Engineer, Mechanical and Electrical Circle, Irrigation and Waterways Directorate, Government of West Bengal and by considering the selection of the petitioner to the scale of pay Rs. 310-10-400-5-56- 20-685/- settled for the post of tractor -cum-trailer driver on the basis of the principle 'equal pay for equal work' ; (b) A Writ in the nature of Mandamus and/or any other appropriate Writ or Writs, order or orders and/or direction or directions be issued commanding the respondents and/or their servants, agents or assigns to act and proceed in accordance with law by declaring the service of the petitioner permanent and/or quasi-permanent and by giving regular status of the said service ; (c) A Writ in the nature of certiorari be issued directing the respondents to transmit the records of the case and to certify the same as that conscionable justice may be done to the petitioner; (d) Any other appropriate Writ or Writs be issued by provide complete protection and remedy to the petitioner; (e) Rule Nisi in terms of prayers (a) to (d) above and to make the Rule absolute if no cause is shown and/or insufficient cause is shown ; (f) Ad interim order of injunction be issued restraining the respondents and/or each of them and/or their servants, agents or assigns from giving any effect and/or further effect to the impugned Memo No. 6549/121-10/A dated 18.12.89 issued by the Superintending Engineer, Teesta Mechanical & Electrical Circle, Irrigation and Waterways Directorate, Government of West Bengal : (g) Ad interim Order in terms of prayer (f) above ; (h) Cost or costs; (i) Any other or further order or orders and/or direction or directions be issued as to this Hon'ble Court may deem fit and proper.

(2.) It is stated in details that the petitioner joined the Kangsabati Circle under the Chief Engineer, Irrigation and Waterways Directorate, Government of West Bengal as muster roll employee in the year 1973. He was transferred from Kangsabati Circle to Teesta Mechanical Division No. II in 1979. It is further stated that he has completed 17 years of service and out of the said 17 years, 10 years have been completed as work charged helper at Teesta Mechanical Subdivision No. II. The service of the petitioner has not been declared permanent or quasi-permanent and he has not been given either permanent status or regular status. It is placed on record that the petitioner offered his candidature as a departmental eligible candidate for the post of Tractor-cum-Traitor Driver as he has requisite qualification and experience. The petitioner possessed the licence issued by the appropriate authority also. It has been highlighted that he learnt about his selection to the post but he has been intimated otherwise by communication dated 8.5.86. It has been intimated that he has been appointed as work charged Helper-cum-Tractor Driver in the scale of pay of Rs. 260-537/plus usual allowances as admissible. The petitioner filed a previous writ application and the same was disposed by M. R. Mallick, J., directing the Superintendent Engineer to consider the representation of the petitioner within a specific period and the respondent No. 2 asked the petitioner to appear before a board for hearing on 12th December, 1989. The representation was disposed by holding that since the petitioner does not possess the requisite qualification the case of selection does not arise and he cannot get the scale of pay of Rs. 300-685. The petitioner submits that from the very date of appointment in the post of work charged helper, the petitioner has been performing the duty of operating heavy earth moving vehicles like tractors and trailers as well as crane with minimum scale of pay for the post of helper whereas he is entitled to the Scale of pay fixing for the post of work charged tractor-cum-trailor driver as per the principle of 'equal pay for equal work'. Stating all these facts in details the petitioner has come to this writ Court again seeking reliefs as indicated above on the grounds that the respondent authorities have not considered the principle of 'equal pay for equal work in the matter of service of the petitioner and thereby have acted arbitrarily, mala fide and without following the principles of justice, equity and fair play. Since the petitioner has been actively working, there is no bar and/or impediment to grant the reliefs to the petitioner as asked for.

(3.) The writ petition is opposed by the respondents 1 to 5 by filing a comprehensive affidavit-in-opposition sworn by the respondent No. 3, Executive Engineer, Teesta Mechanical Divisions. The allegations of the writ petition have been denied. It is disclosed inter alia, that the petitioner actually joined the Teesta Division as muster roll employee in terms of the Memo dated 31.1.79 and be was subsequently appointed as helper under work charged establishment on and from 3.3.79. The petitioner has already been absorbed under work charged establishment on and from 30.4.80. He has already been declared as permanent is the post of helper. In terms of labour department's Memo No. 800-EMP dated 24.4.80, duty qualified departmental candidate is to be considered for appointment to higher post alongwith the candidates sponsored by the Employment Exchange. It is further disclosed that the petitioner was never selected for the post of tractor-cum- trailor driver. In fact, for the purpose of utilization of the machinery, the departmental candidates who are possessing adeast a licence for driving medium vehicle and earth moving tractor was considered for appointment in a lower post of helper-cum-tractor driver in the pay scale of 260-537. Accordingly, on emergent basis a practical test was conducted by a selection committee on 4.3.86 amongst the available department candidates and as a result of such tests, three candidates including the petitioner were selected by the selection committee. They were appointed for a period of three months on a purely ad hoc basis, The State official has no authority to intimate anybody beyond the scope of the Government orders. No interview for the Selection to the post of tractor-cum-trailor driver was conducted on 4.3.86. As per the direction of the Hon'ble Court the representation of the petitioner was considered and en appropriate communication was sent to the petitioner. The selection Hoard has specifically held drat the petitioner does not possess requisite qualification at that time, namely on 12th December, 1989.