RANAJIT BASU Vs. STATE OF WEST BENGAL

JUDGEMENT

(1.) The petitioner in this application under Article 226 of the Constitution makes grievance of the two orders, namely Annexure 'E' dated 10th of April, 1980 and Annexure 'F dated 4th of July, 1980. The petitioner at the relevant time was the Chief Bengali Reporter of the West Bengal Legislative Assembly Secretariat. By the order dated 10th April, 1980 he was directed not to enter the chamber of the Assembly until further orders. This order was passed in view of some representations made by other reporters in the Assembly to which I shall presently refer. The other order which is Annexure 'F' dated 4th July, 1980 whereby the Speaker of the West Bengal Legislative Assembly has been pleased to place the services of Sri Ranajit Basu, Bengali Reporter, West Bengal Legislative Assembly Secretariat at the disposal of the Department of Information and Cultural Affairs, Govt. of West Bengal for appointment as News Reporter in that department On the same date which is also included in the Annexure' F another order was passed whereby the Governor has been pleased to appoint Sri Ranajit Basu, Bengali Reporter in the Legislative Assembly to act as News Reporter under the information & Cultural Affairs' Department in the scale of Rs.450/-.1050/- for a period of six months from the date he assumed charge until further orders, the order, inter alia, provided that the Governor has further been pleased to allow Sri Basu to draw a special pay of Rs.100/- per month in view of the arduous nature of the job. The notification has also been annexed and is under challenge. In order to appreciate this controversy it is necessary to refer to certain facts which I shall presently do.

(2.) But before I do so it is necessary to bear in mind the notification issued under Section 241 of the Government of India Act, 1935 declaring certain posts in the Bengal Legislative Assembly Department to be included in the Government service. That notification included in Schedule VIII, clause (b). Item 96- to 102 who were Secretary, Bengal Legislative Council Department, Assistant Secretary, Bengal Legislative Council Department, Registrar, Bengal Legislative Assembly Department, 1st Assistant Secretary, Bengal Legislative Assembly Department, 2nd Assistant Secretary, Bengal Legislative Assembly Department and Registrar, Bengal Legislative Assembly Department. It has to be borne in mind that this notification was issued at a time before the Constitution of India when the separateness of the Legislature from the control of the executive government was not so emphasised, as has been done under the Constitution. On 24th August, 1953 the West Bengal Legislative Assembly Secretariat Rules, 1953 were framed under Article 187(3) by the Governor after consultation with the Speaker. The petitioner was appointed as a temporary typist on 18th of June, 1964 in the Public Health and Engineering Department of the Govt. of West Bengal. On the 16th of September, 1965 application was made by the petitioner for the post of Junior Bengali Reporter in the West Bengal Legislative Assembly. This allegation has been made at page 16 of the first affidavit in reply. This would be borne out, that this statement was correct because of the subsequent letter of appointment. On the 30th of October, 1965 the petitioner was provisionally selected for the said post and request was made by the Assistant Secretary, Legislative Assembly Secretariat to the Chief Engineer, Public Health and Engineering Department of the Govt. of West Bengal for the release of the petitioner so that he might join his new post. This would be clearly borne out by Annexure 'Y' of the affidavit in Opposition filed on behalf of the Legislative Assembly. On the same date the petitioner also applied to the Chief Engineer, Public Health and Engineering Department for release. This would be borne out by the document at page 16 of the first affidavit in reply of the petitioner on the 1st of November, 1965 order of release was passed which is Annexure 'J' of the affidavit in Opposition of the Legislative Assembly. There was, another notification issued on the 6th of July, 1966 under Article 309 amending the earlier notification dated 4th June, 1941 by including gazetted posts which had not been included specifically in any other State services as part of the earlier notification. It was contended that in the earlier notification issued in 1941 the employees of the Legislative Assembly under the West Bengal Legislative Assembly were included with the posts of the Government service, under the Home Department, while in 1966 when fresh notification was issued care was not taken to separately mention the employees of the West Bengal Legislative Assembly because it was inconceivable that under the Constitution and the specific provisions of the Constitution to which I shall presently refer it was expected that 'the employees of the West Bengal State Legislative Assembly could continue to be under the control of West Bengal Govt. Home Department; it would be repugnant to the very essence of separateness as envisaged in the constitutional provisions. On the 8th of September, 1971, there was a notification issued appointing the petitioner as Senior Reporter (Bengali) in the West Bengal Legislative Assembly by the order of the Speaker with effect from 10th of May, 1971. The said notification, however, was amended on 29th of August, 1972 so as to take effect from 23rd of April 1969 instead of 10th May, 1971. On 23rd of April, 1971 amendment was made to the West Bengal Legislative Assembly Secretariat (Pay and Allowance) Rules, 1970 under Article 187(3) by the Governor after consolation with the Speaker. Petitioner was confirmed on 2nd of May, 1977 in the post of Bengali Reporter to the West Bengal Legislative Assembly Secretariat with effect from 23rd of April, 1969. On the 31st of March, 1979 the petitioner was allowed to cross the second efficiency bar in the time scale of pay by the order of the Speaker. On the 8th April, 1980 recommendation was made by the Speaker to the Minister, Finance Department for financial help to the petitioner to enable the petitioner to publish his thesis On the. 9th of April, 1980 there was a complaint by 24 Reporters which is set out at page 31 of the petition against the petitioner. On the 10th April, 1980 the Secretary, Legislative Assembly sent the complaint to the petitioner for his comments. Order was passed on the same date by the Speaker directing the petitioner not to enter the chamber of the Assembly until further orders. On the 16th April, 1980 the petitioner furnished his comments against the complaint. On the 9th June, 1980 notice under Section 80 of the Civil Procedure Code was given of a suit for defamation by the petitioner on the reporters who had made the complaint against him. It is not necessary for the purpose of deciding the contention and the controversy involved in this case to set out in detail either the recommendation of the Hon'ble Speaker for financial help to the petitioner for the publication of his thesis on the history of the Legislative Assembly nor is it necessary to set out in detail the actual complaint by the 24 Reporters against the petitioner. On 1st of July, 1980 the proposal for the creation of a post of News Reporter in the Department of Information and Cultural Affairs receive J the assent of the Hon'ble Chief Minister and the Hon'ble Finance Minister. On the 2nd of July, 1980 the above post of News Reporter in the Department of Information and Cultural Affairs was sanctioned. On the 4th of July, 1980 the Speaker placed the services of the petitioner at the disposal of the Department of Information and Cultural Affairs for "appointment" as News Reporter in that department. On the 4th of July, 1980 there was an order by the Deputy Secretary, Department of Information and Cultural Affairs "appointing" the petitioner "to act as News Reporter" under the Information and Cultural Affairs Dept. for a further period of 6 months until further orders. On 7th of July, 1980 the present application under Article 226 of the Constitution was moved and filed, and certain directions for filing of the affidavit was made by Mr. Justice D. K. Sen passing certain interim orders restraining the respondent from giving further effect to the impugned orders and permitting withdrawal of salary. The said order was from time to time modified by the learned Judge as also by Mr. Justice T. K. Basu. The said orders were passed upon notice to the respondents and upon hearing them. Ultimately, on 3rd of March, 1981 a rule nisi was issued and the interim orders made were directed to be continued with certain modifications, and directions for filing affidavits were given. After the affidavits were filed certain other modifications were obtained from time to time and ultimately on the 4th of June, 1982 the matter was mentioned before me for hearing after three weeks and has since been heard by me.

(3.) Two points were urged in support of this application. It was submitted firstly, that in the background of the facts and circumstances of the case the impugned order was a malafide one and a colourable exercise of the power of the competent authority at the behest of certain reporters" allegations which were not investigated nor in respect of which petitioner was given any chance or opportunity to adduce any evidence or proof. It was submitted that the sequence of events narrated before would manifest the above allegations. It was, secondly, submitted that being a permanent Chief Bengali Reporter of the West -Bengal Legislative Assembly the petitioner was a permanent employee of the Legislative Assembly which was a separate ex cadre post and the petitioner could not be removed from that position to any other position or to any other service terminating the petitioner's lien on the petitioner's substantive appointment in the Legislative Assembly without the consent of the petitioner. In the premises, it was urged that the action of the respondents were wholly illegal, unconstitutional, malafide and as such void.