DILIP GANGULY Vs. STATE OF WEST BENGAL

JUDGEMENT

(1.) THE writ petitioner who was initially appointed as Typist in Hooghly Chinsurah Municipality by an order of the Chairman of the said Municipality was appointed as Asisistant Head Clerk (monitering performance) with effect from 7th July, 1982. Such appointment of the petitioner as Assistant Head Clerk with effect from 7th July, 1982 was further approved by the Board of Commissioners in its meeting dated 17th July, 1982. In these state of things one Brojo Gopal Banerjee the respondent No. 3 filed a Title Suit being [no. 228 of 1984 in the First court of Munsif for declaration that he is not an Assistant to Head Clerk but an'assistant Head Clerk in the said Municipality and he is still working in the post of Assistant Head Clerk and he is, therefore, entitled to all arrears of pay and other benefits including promotion and seniority. The said suit was thus filed long after the writ petitioner was appointed in the post of Assistant Head Clerk in the said Municipality. Evidently, in the said suit neither the writ petitioner was made a party defendant, nor any interim order was prayed for restraining the respondent municipality from giving any effect to the appointment, if any made, in the post of Assistant Head Clerk to the writ petitioner or to any other person pending disposal of the suit. That again during the pendency of the suit, by an order dated 7th January, 1989 passed by the Chairman of the Municipality, the petitioner was promoted to the post of Head Clerk which appointment was, however, ratified by the authorities of the said municipality in all subsequent proceedings. It is further more significant to note that such promotion of the writ petitioner to the post of Head clerk was also not challenged by said Brojo Gopal Banene, nor any interim order was prayed for restraining the said Municipality to promote any other persons beside said Brojo Gopal Banerjee to the post of Head clerk in the said Municipality. In these state of things, the suit was, however, decreed in favour of said Brojo Gopal Banerjee declaring that he was still working in the post of Assistant Head Clerk and he was entitled to the benefits arising from the said post. Most surprisingly by the self same decree the learned Munsif declared that the change of designation of the writ petitioner by the Municipality as the Assistant head Clerk and/or the Head Clerk was illegal and not binding upon the plaintiff, even though the writ petitioner was not a party to the said suit. The decree, therefore, if there be any in the form as above against the writ petitioner, who was not a party to the suit, is not binding upon the petitioner. Furthermore, during the pendency of the suit the petitioner was promoted to the post of Head Clerk and the decree was not prayed for setting aside such promotion.

(2.) THEREFORE, since after 7th January, 1989 the writ petitioner held the post of Head Clerk while saiid Brojo Gopal Banerjee held the post of Assistant Head Clerk by virtue; of the said decree and both of them were superannuated from their respective posts in normal course. The aforesaid suit having been decreed on 29th day of November. 1995 the respondent Municipality passed an order for reversion of the writ petitioner to the post of Assistant Head Clerk which has been impugned in the writ petition.

(3.) THE learned advocate appearing' on behehal of the Municipality seriously contended that the promotion of the writ petitioner to the post of Head Clerk having not been sanctioned by the State Government pursuant to the provisions of Section 66 of West Bengal Municipality act, 1932, the same cannot have any effect in the eye of law and the writ petitioner was rightly reverted to the post of Assistant Head Clerk by the authority concerned and more so, when the decree passed in the aforesaid title suit was passed declaring that said Brojogopal Banerjee was the Assistant Head Clerk in the said Municipality, but not the writ petitioner. The aforesaid contention on the part of the respondent municipality is patently anomalous, in as much as, the order of reversion was not made because the post of Mead Clerk in the said Municipality was not in existence, while the petitioner was promoted to the said post without creation of the same upon sanction and/or approval by the State government. On the other hand, it appears from the documents annexed to this writ petition that one Santanu Kumar Mallick (since deceased)was holding the post of Head Clerk in the said Municipality and on ;his death the same lay vacant and the writ petitioner was promoted to the said post by an order of the Chairman of Hooghly Chinsurah Municipality, which again was approved in a meeting of the Commissioners and in all subsequent occasions. Section 66 of the said Act provides for creation of posts of officers and employees and for fixing up of salaries and allowances to be paid and granted to such officers and employees by the commissioner of a Municipality as its meeting with the prior sanction of the State Government, if the number of posts to be created in a year in a Municipality are more than 1% of the total number of posts of officers and employees existing in the year immediately preceding. The said section did nowhere speak about the sanction! of the State Government for trie purpose of promotion in an already existing post in the Municipality. The post of Head Clerk in the said Municipality could not be proved to be not in existence, nor the order of reversion was made on that score. The impugned order of reversion was made on the basis of the said decree which was not binding on the writ petitioner in law and had the effect of creation of an extra post of Assistant Head Clerk in the said municipality, particularly when by the said decree Brojogoal Banerjee was declared as Assistant Head Clerk to the said Municipality. The said municipality did nowhere disclose that there the post of Assistant Head Clerk while said Brojogopal Banerjee was declared as Assistant Head Clerk of the said Municipality by the aforesaid judgment and decree. The aforesaid judgment and decree by no means whatsoever could have the effect of holding that Brojogopal Banerjee was holding the post of Head Clerk white the petitioner was reverted to the lost of Assistant Head Clerk in the absence of any order of promotion in favour of Brojogopal Banerjee. The aforesaid decree at best had the effect that Brojogopal Banerjee notionally held the post of Assistant Head clerk. Therefore, the order of reversion of the writ petitioner to the post of Assistant Head Clerk in the said Municipality after the said decree, in the absence of any material that in fact there were two posts of Assistant head Clerks in the said Municipality was absolutely without authority and further the same ran contrary to the provisions of Section 66 of the said Act. Thus, the impugned order of reversion of the writ petitioner on the grounds as aforesaid cannot be sustained.