Decided on June 05,1996

Diamond Harbour Municipality And Ors. Appellant


S.B. Sinha, J. - (1.)Although this appeal was directed against a judgment and order dated 24.9.93, being an interim order which was subsequently extended by orders dated 30.9.93 and 1.10.93 passed by a learned single Judge of this court in C.O. No. 15891 (W) of 1993, whereby and whereunder the interim order was directed to continue, on the request of the learned counsel for the parties, the entire writ petition was heard. The writ petitioners who are 6 in number filed the aforementioned writ application, inter alia, for issuance of a Writ of or in the nature of Mandamus directing the respondents to rescind the resolution dated 22.9.93 whereby and whereunder the services of the writ petitioners were terminated by the Commissioners of Diamond Harbour Municipality as -also the order of the same date passed by the Chairman of the Board of Commissioners of the said Municipality which is contained in Annexure 'FT to the writ application.
(2.)The basic fact of the matter is not in dispute.
The erstwhile Board of Commissioners allegedly keeping in view the exigency of circumstances issued a notice in the notice board, for appointment of some persons for essential service of the Municipality and in public interest, pursuant whereto the writ petitioners along with others applied for different posts. It is also not in dispute that the Commissioners of the Municipality had applied before the State of West Bengal for grant of prior approval but no such approval having been granted, the Commissioners by a resolution dated 4.3.93 purported to be in view of the exigency of the situation considered the applications of 10 persons who had been named therein and took an unanimous decision to appoint them on a monthly salary of Rs. 240/ - and a sum of Rs. 7/ - towards T.A. and other allowances. Out of the 10 persons, Mihir Mondal, writ petitioner No. 1, Bapi Mondal, writ petitioner No. 2. Ayed all Shaik, writ petitioner No. 3 were appointed for the cycle stand, whereas, Bibek De, Biswajit Dey. Asit Baran Chatterjee and Narayan Bhattacharya (writ petitioner No. 4) were appointed as Ticket Collectors in the Ferry Service and Arun Dalui was appointed as an electric mistri. The writ petitioner No. 6 was allegedly appointed as experienced person as a tubewell mistri assistant. It is not in dispute that the election of the Municipality had taken place in the year 1988. The notification for the election which was to be held was published on 24.2.93 which reached the hands of the members of the Board on 4.3.93. Evidently, on the same day, the aforementioned resolution was adopted by the Commissioners. Pursuant to the said purported resolution, the writ petitioners. Pursuant to the said purported resolution, the writ petitioners were appointed by the then Chairman of the respondent No. 1 Municipality. After the aforementioned election was held, the present incumbents of the posts of Board of Commissioners held a meeting on 22.9.93 and upon discussing the validity of appointment made by the previous commissioners it was decided by 2/3rd majority that such appointments pursuant to the resolution dated 4.3.93 were not proper and valid and contrary to the decision and direction of the State Government and accordingly all such appointments were decided to be cancelled by terminating their services. It has not been disputed that despite the fact that in terms of the provisions of the Bengal Municipal Act, 1932 (hereinafter called and referred to for the sake of brevity as the said Act) the salary of the employees are required to be paid by the Municipality, the State Government had undertaken the said liability. The State Government had issued circular letters banning employment and further issued a direction not to create any post whatsoever in the Municipality. It appears that in terms of the aforementioned direction of the State of West Bengal, the erstwhile Board of commissioner prayed for approval of the State appointment of the writ petitioners and other persons.

(3.)Mr. Chatterji appearing on behalf of the writ petitioners had raised a short question in support of this application. Learned counsel submits that the power of the State Government to accord approval being confined to the proviso appended to Subsection (1) of Sec. 66 of the said Act, such approval being not needed, as it has not shown that the appointment of 10 persons by the Commissioners of the Municipality was above 1% of the sanctioned strength. Subsection (4) of Sec. 66 of the said Act shall come into force and in that view of the matter, the writ petitioners who had derived a legal right by reason of such appointments were entitled to continue in service. Learned counsel contends that only because there has been a change in the Board of Commissioners, the services of the writ petitioners could not be terminated without assigning any reason and without complying with the principles of natural justice. Learned counsel contends that in the instant case, the salary payable to the writ petitioners being less than Rs. 250/ - even no approval was required.

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