- (1.) 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.
(2.) 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.
(3.) 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 STATE OF HARYANA V. PIARA SINGH, 1992 AIR(SC) 2130. 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 attendants 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-156799 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 ad hoc 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 ad hoc 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 ad hoc 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.;