- (1.) THE Chairman of the Raiganj Municipality vide his communication dated December 30, 2010 addressed to the Director of Local Bodies, West Bengal, submitted a proposal for absorption of eight (8) number of group -D category staff against sanctioned vacant posts in the municipality. The Chairman informed the said Director of Local Bodies that the Board of Councilors of the municipality had taken a resolution in respect of engagement of those employees, who were performing duties in the municipality, but they were not absorbed against the sanctioned vacant group -D posts due to non -receipt of government approval in the matter. The employees concerned following decision of the Board of Councilors have been granted scale of pay in the group -D post on different dates, the details of which were being furnished to the said directorate in separate sheets along with the communication dated December 30, 2010. The Chairman proposed that those employees might be absorbed against sanctioned group -D posts as such posts were lying vacant in the municipality. The chairman also emphasized that such absorption was necessary and they could be absorbed on obtaining approval from the government against the sanctioned vacancy in the municipality. It is not in dispute that the said employees are discharging their duties. The learned advocate appearing on behalf of the petitioner submits that it is not in dispute that the petitioner has put in service for long years and by this time he has spent his prime time in working as a technical skilled person in the electrical department of the municipality. It is submitted that the petitioner's case is to be considered by the Director of Local Bodies in terms of the proposal given by the Chairman of the municipality.
(2.) THE learned advocate appearing on behalf of the State respondents submits that having regard to the nature of appointment given to the writ petitioner on January 31, 2003, his services could not be regularised. In support of such contention, he has referred to a decision of the Supreme Court in the case of Secretary, State of Karnataka vs. Uma Devi (3) reported in (2006) 4 S.C.C. 1. In the constitutional scheme of things and labour legislations operating in the field, the court is under a bounden duty to enforce the fundamental rights of a citizen. It is the duty of the court to enforce the rule of law and ensure that the administration acts fairly. Arbitrariness strikes at the route of Article 14 of the Constitution. Where there is permanent and long term requirement of post, it is grossly arbitrary and unfair to make short term appointment at a meagre remuneration and to continue with such appointment year after year. The State should be a model employer and not keep its employees in temporary or ad hoc status for long. The court cannot allow the administration to exploit its employees by taking recourse to short term appointment at a meagre remuneration and continuing with such appointment indefinitely. It is not in dispute that that the petitioner by this time has put in at least for ten years of service. The case of the absorption of the petitioner is yet to be considered by the Director of Local Bodies. It is expected that the Director of Local Bodies shall decide the issue keeping in view the recommendation of the Chairman of the municipality and the application filed by the petitioner for his absorption. The Director shall also take into consideration the observations made in this order as well as the observations made by the Hon'ble Supreme Court in the case of State of Karnataka & ors. vs. M. L. Kesari & ors. reported in (2010) 9 S.C.C. 247. In paragraph 11 of the said decision, the Hon'ble Supreme Court has explained the decision rendered in Uma Devi (3), which is reproduced hereinbelow : - "11. The object behind the said direction in para 52 of Umadevi (3) is twofold. First is to ensure that those who have put in more than ten years of continuous service without the protection of any interim orders of courts or tribunals, before the date of decision in Umadevi (3) was rendered, are considered for regularization in view of their log service. Second is to ensure that the department/instrumentalities do not perpetuate the practice of employing persons on daily wage/adhoc/casual basis for long periods and then periodically regularise them on the ground that they have served for more than ten years, thereby defeating the constitutional or statutory provisions relating to recruitment and appointment. The true effect of the direction is that all persons who have worked for more than ten years as on 10.4.2006 (the date of decision in Umadevi (3)) without the protection of any interim order of any court or tribunal, in vacant posts, possessing the requisite qualification, are entitled to be considered for regularization. The fact that the employer has not undertaken such exercise of regularization within six months of the decision in Umadevi (3) or that such exercise was undertaken only in regard to a limited few, will not disentitle such employees, the right to be considered for regularization in terms of the above directions in Umadevi (3) as a one -time measure."
(3.) IT appears that another learned Single Judge of this court disposed of a similar writ application being W.P. 5840 (W) of 2013 by directing the Director of Local Bodies and Ex -Officio Joint Secretary, Government of West Bengal, to consider the proposal of the municipal authority and take the ultimate decision thereon keeping in mind that the service of the petitioners has been utilized by the municipal authority for a long period on payment of salary in the scale of pay which is admissible to the regular group -D employees. The entire exercise in that regard was directed to be completed within four weeks from the date of communication of this order as most of the petitioners were due to retire shortly. The concerned authority was also directed to intimate its decision to the municipal authority within a week thereafter. In view of the similar facts and circumstances as that of the earlier writ petition, the present writ petition is also disposed of by directing the Director of Local Bodies and Ex -Officio Joint Secretary, Government of West Bengal, to consider the proposal of dns the Chairman of the Raiganj Municipality and take ultimate decision thereon keeping in mind that the service of the petitioner has been utilized by the municipal authority for ten years on payment of salary in the scale of pay which is admissible to the regular group -D employees, after giving an opportunity of hearing to the chairman of the municipality and by passing a reasoned order. ;