- (1.) The judgment of the Court was as follows: By this writ application, the petitioners, five in number who were all appointed by the State of West Bengal and were sent to Calcutta Metropolitan Development Authority (C.M.D.A.), have prayed fordirection upon the CMDA to absorb them in the service of C.M.D.A. permanently with all service benefits including promotional benefit.
(2.) The following facts are not in dispute : a) The petitioners were all appointed by the Governor of West Bengal in Public Works (Road) Department and they were placed on deputation with the CMDA by the order of the Governor. The terms and conditions of such deputation are mentioned below : "i) The services of persons who immediately before the transfer held lien on or were appointed on probation to the permanent posts or were declared quasi-permanent or Govt. Servants with permanent status under Road Construction Circle No. VI in the P.W. (Roads) Department as shown in the statement (to allow) and their service in the posts to which they were appointed by the C.M.D.A. on transfer or to which they may subsequently be appointed or promoted substantively shall be continuous and treated as qualifying service for the purpose of pension. For these employees post will be retained under the P.W. (Roads) Department as shadow posts till such time as the incumbent would retire from service or finally opt for CMDA terms. The CMDA shall pay in respect of these employees contribution for pension under the relevant rules of the West Bengal Service Rules, Part-l. ii) While these persons shall be subject to the control of the matters relating to conduct and discipline, they shall have the right of appeal to the State Government and none of them shall be removed or dismissed from service or reduced from substantive rank without orders of the Government. iii) None of these employees shall be granted extension of services except with the previous approval of the Government. iv) The leave of both gazetted and non-gazetted servants, who hold lien on the shadow posts or who have been declared quasi-permanent or Govt. servants with parmanent status will be sanctioned by CMDA. The CMDA will pay the actual leave salary and will not be required to pay and leave salary contribution to the same Govt. The CMDA will, however, pay pension contribution for period of leave also. The leave accounts of the Officers may in transferred to the CMDA who will maintain them. v) Pension of these Officer shall be sanctioned by the appropriate authority underthe Government in accordance with the West Bengal Service (Death-cum-Retirement benefit) Rules, 1971. vi) The statement containing the details of the employees mentioned in Para-l, namely, their names scales of pay and pay drawn on 1/11/73 i.e. the date of transfer from Govt. to CMDA, will be sent separately. vii) The services of all the temporary employees' with less than 3 years' services as on the date of transfer and the work-charged establishment are placed at the disposal of the CMDA for appointment in identical posts which such employees and establishment were holding; subject to the terms and conditions specified in the Govt. resolution cited above. This has the concurrence of the Finance Department. Yours faithfully, Sd/-lllegible, 341/10/73 Secretary" b) It further appears from record that since then the petitioners have been working in CMDA for the last 30 years or more and they have also been given promotion in the CMDA. c) It appears from letter dated 29th April, 1986, issued by the Deputy Secretary, Government of West Bengal, that the petitioners and two other employees were selected along with others for appointment to the higher post carrying higher scale of pay under CMDA without the consent of the Government and on their appointment to the higher post by CMDA, according to the Government of West Bengal, they became employee of CMDA and the Government refused to take back those employees on repatriation. d) Ultimately, the State Government did not take back the petitioners from deputation and at the same time, the CMDA also refused to accept! the petitioners as their employee. It appears that the petitioner are all; willing to be absorbed in the CMDA but the CMDA had refused to absorb them on the ground that the petitioners are "not fit".
(3.) Ultimately, the petitioners have come up with the instant writ application thereby claiming absorption in CMDA.;