Calcutta High Court (Appellete Side)

Absorption Of Casual Workers vs Unknown on 19 June, 2012

Author:
Pratap Kumar Ray

Bench:
Pratap Kumar Ray
19.6.2012
F.M.A. 722 of 2011

Mr. Sumitro Dasgupta
... for the appellant

Mr. Debabrata Saha Roy
Mr. Indranath Mitra
... for the State.

-------------------

Pratap Kumar Ray,J.

Heard the learned advocates appearing for the parties.

Assailing the judgment and order dated 2nd February, 2011 passed by the
learned trial Judge in W.P. 23370 (W) of 2010, this appeal has been preferred.
Impugned order reads such:

"By this writ petition, the petitioner has challenged the order dated 3rd
September, 2010.

The case of the petitioner is that he was appointed as Panchayat Karmee on 5th
July, 1992 on casual basis in view of the Circular dated 8th October, 2003. Therefore, he
is entitled to be regularized and for such purpose, a representation was made. As such
representation was not considered, a writ petition was filed and an order was passed for
considering the petitioner's representation. Such representation has been considered
and order passed on 3rd September, 2010. The said order dated 3rd September, 2010 is
bad as it has failed to appreciate that in 1992 the petitioner was appointed as a Job
Assistant and after the 2007 Rules, the petitioner has been working as Panchayat
Karmee. Therefore, as a Panchayat Karmee, he is entitled to be regularized. The finding
of the hearing authority is otherwise and therefore, is liable to be set aside.

Counsel for the State respondent submits that no interference is called for with
the order dated 3rd September, 2010 as the findings of the hearing authority are in
accordance with Rules of 1995 and 2007.

Having considered the submissions of the parties, there is no doubt that the
petitioner was appointed on 5th July, 1992 although in paragraph-2 of the writ petition,
it has been averred that the petitioner was appointed as Panchayat Karmee, the said
cannot be accepted as the West Bengal Panchayat (Recruitment and Conditions of
Service of Gram Panchayat Karmee) Rules, 1995 was promulgated in 1995. Therefore,
the petitioner prior to 1995 could not have been appointed as a Gram Panchayat
Karmee.

From the order dated 3rd September, 2010, it appears that by resolution of
1992, the petitioner was appointed as a Job Worker. Such post of Job Worker is
continuing even today as will evident from the West Bengal Panchayat (Recruitment of
Gram Panchayat Employees) Rules, 2007. The Recruitment Rules of 2007 also dealt
with recruitment of Panchayat Karmee. As the petitioner was appointed as a Job Worker
and not as a Panchayat Karmee the representation made in this respect has been rightly
rejected and no interference is called for with the order dated 3rd September, 2010.
Another reason for not passing any order on this writ petition is that nowhere in the writ
petition has it been averred that the post of Job Assistant has been abolished and in its
place, Panchayat Karmees are appointed.

In view of the aforesaid, no order is passed on this writ petition and the writ
petition is dismissed.

As no affidavit-in-opposition has been filed, the allegation contained in the
petition is not admitted.

Urgent certified Photostat copy of this order, if applied for, be given to the
parties subject to compliance with all requisite formalities."

Learned trial Judge dismissed the writ application by assigning reason
that there was no scope for regularization as writ petitioner admittedly was not
an appointee to the post of Panchayat Karmee, since the post was created
following the West Bengal Panchayat (Recruitment and Conditions of Service of
Gram Panchayat Karmee) Rules, 1995, long after casual appointment of the writ
petitioner in the year 1992 by resolution of the Gram Panchayat in the post of
Job Worker or other job. The circular letter dated 8th October, 2003 as relied
upon by the writ petitioner for relief in the regularization of service was not
applied by the learned trial Judge.

It is the grievance of the appellant before us that since by an unanimous
resolution of Sandeskhali Gram Panchayat, the writ petitioner/appellant was
appointed in the post to work as Job Worker or Karmee Sahayak temporarily on
payment of nominal salary where he is continuing as casual appointee, the
appellant in terms of the notification no. 3598/PN/O/I/3S-114/2003 dated 8th
October, 2003, has accrued right for regularization of his service in a permanent
post. The notification as relied upon reads such:

"Government of West Bengal
Department of Panchayats & R.D.
Panchayat Wing
Jessop Building
63, Netaji Subhas Road, Kolkata-700001

No. 3398/PN/O/I/3S-114/2003 Dated: 08.10.2003

NOTIFICATION

Whereas Panchayat bodies that is Zilla Parishads, Panchayat Samities and
Gram Panchayats have been allowed to absorb casual workers, in some cases, who have
been engaged in perennial type of work for a continuous period of more than three years
in the concerned Panchayat bodies and orders in this behalf were issued by this
Department, from time to time, in accordance with the principles prescribed by the
Labour Department of the State Government in their Memo No. 100-EMP dated
13.03.1996 read with Memo No. 1700-EMP dated 03.08.1997 and Memo No. 1650-EMP
dated 28.08.1980 in the matter of absorption of casual workers.

And whereas Hon'ble High Court at Calcutta in
W.P. No. 766 (W) of 2002
Sudhir Chandra Mahato vs. State of West Bengal
passed an order dated 2.12.2002
directing State Government to issue an appropriate well considered circular by way of
notification to regularize the irregular appointments, if any, given by the respective
Gram Panchayats, Panchayat Samities and Zilla Parishads in different occasions.
It has
also been directed that the due consideration will be made in respect of the best parts of
the existing circulars and the scheme will be formulated as far as practicable with the
guidelines given in the paragraph 25 of the judgment reported in AIR 1992 SC 2130
(supra).

Now, therefore, in exercise of the power conferred by
section 212
of the West
Bengal Panchayat Act, 1973 (West Bengal XLI of 1973), as subsequently amended, and
in supersession of all earlier orders issued in this behalf, I am directed to say that the
Governor is pleased hereby to direct that for the purpose of regularizing the irregular
appointments, if any, given by the respective Gram Panchayats, Panchayat Samities and
Zilla Parishads, as the case may be, the concerned recruiting/appointing authority shall
consider the following guiding principles:

(i) the following casual and such other categories like contingent, work-

charged, seasonal, etc. of eligible workers, only shall be considered who have been
engaged in a perennial nature of work on the strength of a resolution in a meeting of the
concerned Panchayat bodies in favour of such engagement and has rendered services for
a continuous period of more than three years (for at least two hundred and forty days of
work in each such calendar year for three consecutive years) within the last five years
before 13.03.1996 and has commenced his work at an age within the maximum age
limit prescribed for such recruitment. Such period of works shall be five years or more in
case of seasonal workers and they have been continuing as such till the date of their
regularizations.

(ii) Such workers must possess the requisite qualification prescribed for the
posts in the respective recruitment rules. Requirement of minimum fifty percent marks
in aggregate in the Madhyamik or equivalent examination is not, however, necessary for
regularization of casual and such other categories of workers in a Group 'C' post in the
concerned Panchayat bodies.

(iii) Such irregular appointments can only be regularized on availability of
suitable vacancies in the regular establishments of the concerned Panchayat bodies.

(iv) at the time of engagement of casual and such other categories of workers
their age should be within the age limit prescribed for the post in the respective
recruitment rules. Over age of such workers, if any, at the time of their regularization
shall be condoned by the respective appointing authorities themselves.

(v) wages of casual and such other categories of workers must have been paid
out of the own fund of the concerned Panchayat bodies and not out of scheme
contingencies.

(vi) the service records of casual and such other categories of workers must be
satisfactory.

(vii) priority amongst the casual and each other categories of workers for
regularization in the establishment shall be given only on the basis of the length of
services rendered by them.

(viii) verification of attendents and medical fitness of casual and such other
categories of workers are required before regularization.

(ix) regularization of casual and such other categories of workers does not run
counter to the prevailing reservation policy of the State Government. If, however, in case
of necessity, the order in respect of de-reservation of the post shall be obtained from the
competent authority in terms of section 6 of the West Bengal Scheduled Castes and
Scheduled Tribes (Reservation of Vacancies in Service and Posts) Act, 1973 read with
guidelines for initiation of proposals for de-reservation as forwarded under Memo No.
98(91)-BCW/MRD-156/99 dated 07.01.2000 of the Backward Classes Welfare
Department of the State Government.

(x) All vacancies, inter alia, in the post in the Panchayat bodies shall normally
be filled up by such candidates as may be sponsored by an employment exchange in
accordance with the relevant recruitment rules. If in exigencies of administration and
adhoc or temporary employment are made by the Panchayat bodies after 13.03.1996,
efforts shall be given always to replace such an adhoc temporary employee by a regularly
selected employee as early as possible. Employees appointed on adhoc or temporary
basis after 13.03.1996 who are otherwise eligible and have worked for at least three
years shall, however, be allowed to compete along with other candidates sponsored by
an employment exchange in the selection tests to be held by the selection committee for
regular selection or appointment to the post. If such an adhoc or temporary employee
does not qualify himself in the selection test for the purpose, he must give way to the
regular selected candidate. The concerned recruiting/appointing authority shall not
withhold or keep in abeyance of appointment of the regularly selected candidate for the
sake of adhoc or temporary employee.

(xi) an adhoc or temporary employee should not be replaced by another adhoc
or temporary employee, such employee must be replaced only by a regularly selected
candidate. Prior to the replacement of Casual workers orders contained in this
Department Notification No. 3597-EN dated 08.10.2003 shall, however, be kept in mind
of the recruiting/appointing authority.

(xii) if an when casual and such other categories of worker as regularized
he/she should be placed immediately below the last regularly appointed employees that
category class or service as the case may be of the concerned establishments.

(xiii) after due observance of all principles laid down hereinabove, the
recruitment/appointing authority of the concerned Panchayat bodies, shall forward its
recommendation to the respective Panchayat bodies for taking immediate resolution for
consideration and the effect of regularization, if any, of such worker shall take place
from the date on which the resolution of the concerned Panchayat bodies has been
adopted.

By order of the Governor,
M. N. Ray
Secretary to the Govt. of West Bengal"

This appeal has been opposed by the State-respondents relying upon the
West Bengal (Gram Panchayat Administration) Rules, 1981 (hereinafter referred
to as 'said Rules, 1981'). It is the contention of the State-respondents that under
Rule 36, Gram Panchayat was entitled to appoint any person only in a
sanctioned post and there was no scope for appointment of any person in a post
not sanctioned and approved by the Director of Panchayats and Rural
Development. It is further contended that under sub-rule (5) proviso of said Rule
36, which became effective by notification no. 3536/PN/O/I/3R-I/2000 dated
30th August, 2001, there is no scope for regularization of appointment, which was
made illegally, on breach of recruitment rule. Rule 36 sub-rule (1) including its
proviso and sub-rule (5) with its proviso reads such:

"36. Appointment of officers and employees by Gram Panchayat and
conditions of service of such officers and employees.-(1) A Gram Panchayat may,
with the prior approval of the [Director of Panchayats and Rural Development,] create
such posts of officers and employees as may be necessary for carrying out the work of
the Gram Panchayat, and may make appointments to such posts:

Provided that no post shall be abolished or no revision of the scale of pay of
shall be made by the Gram Panchayat without the prior approval of the Director of
Panchayats and Rural Development:

Provided further that if any Gram Panchayat or the Pradhan creates any post
without prior approval of the Director of Panchayats and Rural Development, the Gram
Panchayat or any other person appointed by the Gram Panchayat against such post,
shall not make any claim for contribution of the State Government for payment of salary
or wages or any part of it against that post and that on such creation of post by the
Gram Panchayat without prior approval of the Director of Panchayats and Rural
Development, the State Government may consider discontinuation of any contribution
or grant towards establishment cost relating to the said Gram Panchayat.

(2) ...................

(5) Any appointment of an officer or employee under sub-rule (1) shall be made
in accordance with the policy laid down by the State Government from time to time.

Provided that if any Gram Panchayat or the Pradhan on behalf of the Gram
Panchayat makes any appointment in violation of the policy or rules or orders for
recruitment in pursuance of that policy, such appointment shall be void ab initio and
the Gram Panchayat or the person so appointed by the Gram Panchayat in violation or
the policy, rules or orders, shall not have any claim for regularization of such
appointment or for any fund for salary against such appointment."

On a bare reading of said provisions it appears that without any
sanctioned post there was no scope for appointment of any candidate by the
Gram Panchayat. Gram Panchayat is a body corporate framed and constituted in
terms of the statute and not a private body. As such, limitation of exercise of
statutory power in terms of its principle is squarely applicable. It is a settled legal
proposition of law that a private body may act as per his wish all things as are
not prohibited by any statute but a statutory body always have to act within the
framework and parameters of the statutes relating to its action identified and it
cannot travel beyond that. Reliance is placed to the judgments passed in the
cases
Maniruddin Bepari vs. The Chairman of the Municipal Commissioners,
Dacca
, reported in 40
CWN 17, K. Ramadas Shenoy vs. Chief Officers, Town
Municipal Council, Udipi
, reported in (
1974) 2 SCC 506, Bhavnagar University
vs. Palitana Sugar Mill Private Limited
, reported in (
2003) 2 SCC 111,
Ramchandra Keshav Adke vs. Govind Joti Chavare
, reported in (
1975) 1 SCC
559, J.N. Ganatra vs. Morvi Muncipality, Morvi
, reported in (
1996) 9 SCC 495,
Meera Sahni vs. Lt. Governor of Delhi
, reported in (
2008) 9 SCC 177, Union of
India vs. International Trading Company
, reported in (2003) 5 SCC 437 and
Ramdeen Mayurya vs. State of UP, reported in (2009) 6 SCC 735.

In all those
cases the principle as formulated and settled by the Court of Chancery Division
in the case Taylor vs. Taylor, reported in (1875) 1 Ch. D. 426, which
subsequently followed by the Privy Council in the case
Nazir Ahmed vs. King
Emperor
, reported in 1936 Privy Council 253. In the book of Statutory
Interpretation by Crawford, wherein at page 334, this principle has been
discussed under the heading "Express Mention and Implied Exclusion (Expressio
Unius Est Exclusio Alterius", which reads such:

"Express Mention and Implied Exclusion (Expressio Unius Est Exclusio
Alterius.- ........................if a statute enumerates the things upon which it is to operate,
everything else must necessarily, and by implication, be excluded from its operation and
effect. ......................if the statute directs that certain acts shall be done in a specified
manner, or by certain person, their performance in any other manner than that
specified, or by any other person than one of those named, is impliedly prohibited."

Hence, a Gram Panchayat created under statute, namely,
West Bengal
Panchayat Act, 1973
(hereinafter referred to as 'said Act') had no
jurisdiction/power to take resolution on 5th July, 1992, appointing the writ
petitioner in a post, which was not sanctioned and approved and not created
following the said Rules, 1981.

Having regard to the breach committed by different Panchayats,
ultimately, said Rules, 1981, got incorporation of a proviso under sub-rule (5) of
Rule 36 not only restraining such type of appointment but declaring that such
appointments would be void ab initio and there would be no regularization of
appointment or release of any fund for salary from Government exchequer. The
second proviso under sub-rule (1) of Rule 36 also was incorporated by
notification dated 30th August, 2001 putting total embargo that if without prior
approval of the Director of Panchayats and Rural Development any post is
created and anybody is appointed thereto, he would not be entitled to claim
contribution of State Government for payment of salary and wages against that
post.

The West Bengal Panchayat (Gram Panchayat Administration) Rules,
1981 was framed in exercise of the power conferred by
Section 224
of the said
Act. On reflection of the said Rules, 1981, particularly, proviso of sub-rule (5) of
Rule 36, a question involves whether notification dated 8th October, 2003 as
relied upon by the learned advocate for the appellant has any legal force. It
appears that said notification was issued under
Section 212
of the said Act,
which reads such:

"212. Directions by State Government.-In the discharge of their functions
the Gram Panchayat, the Panchayat Samiti and the Zilla Parishad shall be guided by
such instructions or directions as may be given to them by the State Government from
time to time in conformity with the provisions of this Act."

The said Rules, 1981 stipulating the rules for appointment of any
employee and its restriction thereof, was promulgated in exercise of power
conferred by
Section 224
of the said Act, which reads such:

"224. Power to make rules.-(1) The State Government may, after previous
publication, make rules for carrying out the purposes of this Act.

(2) In particular and without prejudice to the generality of the foregoing power,
such rules may provide for all or any of the matters which under any provision of this
Act, are required to be prescribed or to be provided for by rules.

(3) All rules made under this Act shall be published in the Official Gazette, and
shall, unless some later date is appointed by the State Government, come into force on
the date of such publication.

(4) All rules made under this Act shall be laid for not less than fourteen days
before the State Legislature as soon as possible after they are made and shall be subject
to such modification as the State Legislature may make during the session in which
they are so laid. Any modification of the said rules made by the State Legislature shall
be published in the Official Gazette, and shall, unless some later date is appointed by
the State Government, come into force on the date of such publication."

On a comparative reading of
Section 212
and
Section 224
as quoted
above it appears that those sections have their activity field in different areas.

Section 224
is the power to make rules for carrying out the purpose of said Act,
which is inclusive of giving appointment to the employees to perform the duties
and responsibilities of the Panchayat, whereas
Section 212
deals with the
direction of the State Government with reference to discharge of function of Gram
Panchayat or Panchayat Samiti and/or Zilla Parishad.

When a rule making authority being empowered under the statute has
framed a rule with categorical restriction of giving appointment to a post not
sanctioned/approved by the Director of Panchayats and Rural Development and
when there is a total embargo of regularization specifically stipulated in that
provision, namely, proviso of sub-rule (5) of Rule 36 under the said Rules, 1981,
we are of the view that there was no scope to modify the said rule by
administrative instruction as purportedly intended to be done in exercise of
power under
Section 212
of the said Act for the reason that even by exercising
constitutional power to issue executive/administrative instruction taking resort
of
Article 162
of the Constitution of India, there was no scope to vary or modify
any rules framed in terms of the provision of a statute by the competent
legislatures.

Article 162
of the Constitution of India is exercisable in a field where
there is no legislation but once there legislation, in that area by administrative
order or executive instruction under
Article 162
of the Constitution of India
contrary to such legislation if anything is done same becomes absolutely void ab
initio. This point has been answered by the Apex Court dealing with said specific
question, which is applicable in disposing of this appeal, by a Bench constituted
by three Members of the Apex Court in the case
B.N. Nagarajan vs. State of
Karnataka
, reported in AIR 1979 SC 1676, wherein in para 5 the Court held
"when rules framed under
Article 309
of the Constitution of India are in force, no
regularization is permissible under exercise of the executive powers of the
Government under
Article 162
thereof in contravention of the rules".

In the case
Punjab State Warehousing Corpn., Chandigarh vs.
Manmohan Singh & Anr.
, reported in (2007) 9 SCC 337, the Court answered the
question whether any statutory rule could be modified or altered by an executive
instruction far less by way of a circular letter. Paragraph 12 of the said report
reads such:
"Furthermore, when the terms and conditions of the services of an employee
are governed by the rules made under a statute or the proviso appended to
Article 309

of the Constitution of India laying down the mode and manner in which the recruitment
would be given effect to, even no order under
Article 162
of the Constitution of India can
be made by way of alterations or amendments of the said rules. A fortiori if the
recruitment rules could not be amended even by issuing a notification under
Article 162

of the Constitution of India the same cannot be done by way of a circular letter."

B.N. Nagarajan
(supra) was relied in the Constitution Bench judgment
passed in the case
Secretary, State of Karnataka vs. Umadevi
, reported in (2006)
4 SCC 1.

Similar view expressed by the Apex Court in the case
A. Umarani vs.
Registrar, Cooperative Societies & Ors.
, reported in (2004) 7 SCC 112, a
judgment of three Judges' Bench. Para 45 of the said report reads such:

"No regularization is, thus, permissible in exercise of the statutory power
conferred under
Article 162
of the Constitution if the appointments have been made in
contravention of the statutory rules."

Having regard to the aforesaid legal position, hence, when under the said
Rules, 1981, when there is a specific provision being proviso under sub-rule (5) of
Rule 36 by declaring such type of appointment in a non-sanctioned post and
without following recruitment rules as void ab initio and mandating by using
negative term that there should not be any regularization of service, we are of the
view that circular letter/notification dated 8th October, 2003 as relied upon,
being a notification issued by the Hon'ble Governor in exercise of power under

Section 212
of the said Act, has no legal sanction of its applicability. The same
being contrary to the aforesaid proviso of sub-rule (5) of Rule 36 of the said
Rules, 1981, accordingly, has no effective force to regularize illegal appointment
of present writ petitioner.

Considering the aforesaid legal position the writ petitioner/appellant
accordingly accrued no right for regularization of his service in a permanent post.
Besides such, we are relying upon the judgment of
Umadevi
(supra) to hold that
there is no scope to regularize any illegal appointment on breach of the rule. In
the instant case, admittedly appointment was illegal per se as the concerned
Gram Panchayat had no power and jurisdiction to appoint any candidate in a
post neither created nor sanctioned and approved by the competent authority i.e.
the State Government.

Having regard to the aforesaid findings and observations there is no merit
in the appeal.

Appeal, accordingly, stands dismissed.

There will, however, be no order as to costs.

(Pratap Kumar Ray,J.)
I agree,
ab
(Subal Baidya,J.)