- (1.) Heard the learned Advocates appearing for the parties.
(2.) Assailing the order dated 4th March, 2009 passed in original application No.7310 of 2008 by the West Bengal Administrative Tribunal, this writ application has been filed. The impugned order reads such. "Case No. O.A.- 7310/2008 04.03.09 For the application: Mr. A. Bhjattacharya, Ld. Adv. For the respondent: Mr. A.K. Roy, Ld. Adv. Petitioners have filed affidavit of service and let it kept with the record. Mr. Roy appears and represents the state respondents. The petitioners have filed this application claiming their absorption in the Irrigation and Waterways Directorate on the ground that all of them were engaged as casual labour and they have been rendering their service as such for continuous period without any interruption. The petitioners have annexed several papers to show that their case was active under consideration of the authority for some time past but till today, they have not received any further order of their absorption. The learned Adv. for the petitioners contends that some of the petitioners also participated in the selection process after being given interview letter by the appropriate authority but till today, they are not informed about the result of the selection process. Mr. Roy on instruction submits that all the petitioners were casual labour and they were never engaged against any sanctioned post and considering their status, they are not eligible for absorption. On hearing the learned Adv. of both the sides, and having regard to the nature of the documents filed with this application, we hold that this application may be disposed of at this stage without inviting any reply from the respondent authority. Admittedly, the petitioners were engaged and they rendered service in whatever status that might be and following the point of law involved in this regard, we hold that once the petitioners were engaged to render service in favour of the State Government and when they have been allowed to render such service without being terminated till today, their case cannot be left undecided for indefinite period. Thus, we dispose of this application by directing respondent No.2 to take a decision as to how and what manner the petitioners can be absorbed against available sanctioned post, commensurate with their qualification and experience. Since some of the petitioners were allowed to participate in the selection process, we shall direct the respondent No.2 to publish the result of the selection within 3 months and if the petitioners are found suitable for such selection, they must be absorbed against sanctioned post even condoning their age bar and this process must be completed within 2 months after publication of the result. As regards those petitioners who are yet to participate in the selection process we shall direct respondent No.2 to allow them to participate in the selection process if there is any contemplation of filling up other available sanctioned post through general selection process and the petitioners who would be permitted to appear in such selection process, if found eligible after selection should be accommodated within 3 months after holding such selection process and after condoning age bar, if any. With this observation, we dispose of this application. Plain copy to both the sides. Sd /: A.K.Patnaik Sd/: A.K.Basu Member(A) Member(J)" Before the learned Tribunal, the writ petitioners prayed for the following reliefs. "8. Relief(s) Sought: In view of the facts your applicants prayed for the following reliefs: (a) Leave be granted to move the application jointly. (b) Direction upon the respondents to absorb applicants by regularising their services against sanctioned vacant Group "D" post in State Government establishment under Damodar Irrigation Circle, Burdwan, taking into consideration not only their eligibility for such post but also their long experience for such work and fulfilment of conditions as laid down in 100-Emp dated 13.3.1996. (c) The services of applicants be regularised in any Division or Circle i.e. Damodar Head Works Division, Damodar Canal Division, Damodar Irrigation Revenue Division No. 1 and Damodar Irrigation Revenue Division No.II under Damodar Irrigation Circle, Kanainatshal, Burdwan. (d) Such other order as to Your Lordships may seem fit and proper." In the writ petitioner, the petitioners prayed for the following reliefs : "(A) Writ in the nature of Certiorari directing that the records and the order of West Benga State Administrative Tribunal dated 4.3.2009 pertaining to O.A. No. 7310 of 2008 be produced before this Hon'ble Court and upon perusal o the same, conscionable justice may be rendered to the petitioners by quashing the portion of the order dated 4.3.2009 to the extent it directing absorption of petitioners subject to result o interview, and to pass such other or further order or orders. (B) Writ in the nature of Mandamus commanding the respondents to regularise the services of the petitioners in the Government Establishment on the basis of the policy decision of State Government as contemplated in Memo No. 1700-EMP. dated 3.8.1979, 1650-EMP dated 28.8.1980 and 100-EMP dated 13.3.1996 forthwith. (C) Rule in terms of prayers (A) and (B) above. (D) Interim order restraining the respondents from filling up any post of Group "D" staff in regular establishment in Division or Circle i.e. Damodar Head Works Division, Damodar Canal Division, Damodar Irrigation Revenue Division No.1 and Damodar Irrigation Revenue Division No.II under Damodar Irrigation Circle, Kanainatshal, Burdwan without first absorbing the petitioners."
(3.) The writ petitioners before the learned Tribunal had set up a case that they were casual appointee and in terms of the circular letters of the Labour Department issued under Memo No. 100-EMP dated 13th March, 1996, Memo No. 1700-EMPL36-26/78 dated the 3rd August, 1979/16th August, 1979 No. 1650-EMP/EMP/30-5/80 dated the 28th August, 1980, they were eligible to be absorbed. It is an admitted position that the writ petitioners are causal appointee and they were not appointed following the recruitment rules as prevalent in a regular permanent post and in a regular vacancy. It is an admitted position that the concerned post is under the Government of West Bengal. Recruitment rule framed under Article 309 of the Constitution of India for appointment in Group 'D' posts in the Government service provides advertisement of vacancies and the selection process etc. The writ petitioners have placed reliance for regularisation in terms of Memo No.l700-EMP/- 30-26/78 dated 3rd August, 1979/16th August, 1979 issued by the Labour Department, Government of West Bengal in support of their claim for regularisation. The circular letter reads such. "No. 1700-EMP GOVERNMENT OF Calcutta 30-26/78 WEST BENGAL the 3rd LABOUR August DEPARTMENT 1979 16.8.79 MEMORANDUM Sub: Principles to be followed in the matter of absorption of casual and such other categories of worker under the State Government. 1. Government of West Bengal have for some time past been considering the question of discontinuance of employment of casual and such other categories of workers in perennial type of work and the question of gradual absorption of all such categories of workers employed from time to time by the employing Authorities under the State Government, after careful consideration of the matter it has been decided as under: - 2. Further recruitment of casual and such other categories of workers shall not be normally made. Initial recruitment of such workers, if considered unavoidable by any Employing Authority shall henceforth be invariably be through the Employment Exchanges, as already decided in the case of filling up of vacancies of non-P.S.C. non-promotional posts Ad hoc appointment of persons from the open market may, however, be made for a period not exceeding 15 days to meet any situation of emergent nature. Such ad-hoc appointees will have no claim in future for absorption in the regular establishment under the State Government. 3. Casual and such other categories of workers who have been engaged in a perennial type of work for continuous period of more than three years may be absorbed in the regular establishment on temporary basis existing vacancies, if suitable vacancies are not available necessary steps may be taker, by the respective authorities to create the requisite number of posts for the purpose of absorption of such categories of workers in consultation with the Fmar.ee Department. 4.Not wiihstanding anything contained in the recruitment policy circulars issued by the State Government from time to time 5% of vacancies against the quota of 70% earmarked for recruitment through Employment Exchanges shall be kept reserved for absorption of those casual and such other categories of workers, who are already engaged in perennial type of work and have rendered at least 240 days service in a calendar year but have not completed three years' service as yet. 5. While filling up vacancies in the regular establishments duly qualified seasonal workers who have worked for five years or more in successive seasons shall be considered for appointment by respective employing Authorities along with the candidates sponsored by Employment Exchanges. (a). The system of engaging contract labour for aparential type of work by certain State Government Establishments/Undertakings etc. shall be abolished in hases. For the purpose of gradual absorption of contract labour in the regular establishments of the Principal Employer necessary steps may be taken by the concerned Employing Authority. 6. Henceforth at the time of appointment of contractors of the terms and conditions shall be that initial recruitment to all categories of staff by the contractors shall invariably be through the Employment Exchanges. In respect of subsisting contracts, contractors may be persuaded to fill up vacancies under them by candidates sponsored through Employment Exchanges: The above measures will come into force with immediate effect. Continuation:- Unless there is anything repugnant in the subject or context casual and such other categories such workers would mean casual workers daily rated workers, Master-roll workers and such other categories of persons as may be specified from time to time by Government provisions contained in this Memorandum shall apply to all Departments. 6..In case of any doubt as to interpretation and/or implementation of the decisions contained in this Memorandum, the matter shall be referred to the Labour Department. Sd/- Chief Secretary.";