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2024 DAILYLAW 2351 (CAL)

Hon`ble Lt. Governor v. Subendu Mata

2024-06-14

Bibhas Ranjan De, Debangsu Basak

body2024
JUDGMENT : DEBANGSU BASAK, J. 1. Appellant has assailed the judgement and order dated July 26, 2022 passed by the learned Single Judge in WPA 271 of 2021 with IA CAN 1 of 2022. 2. By the impugned judgement and order, the learned Single Judge has directed the appellants to ensure that wages are paid to the respondents herein, commensurate with the rate as specified in the office memorandum dated June 7, 1988. Learned Single Judge has also directed the authorities to consider the possibility of regularizing the respondents in their post with the Zilla Parishad. The authorities have been directed not to disengage or discontinue the services of the respondent except on valid grounds and without giving sufficient notice to the respondents. 3. Learned advocate appearing for the appellants has referred to the prayers made in the writ petition. He has contended that, the office memorandum dated June 7, 1988 would show that the benefit was available only to casual workers doing the same nature of work as regular employees. He has contended that, the writ petitioners were not performing any work as regular employees. Writ petitioners have not placed any evidence to such effect. He has relied upon 2017 Volume 1 Supreme Court Cases 148 (State of Punjab and Others vs. Jagjit Singh and Others) in such context. 4. Learned advocate appearing for the appellants has contended that, the respondents were engaged as casual workers for carrying out certain works against a contingency fund which exhausted on October 1, 2021. The respondents had been appointed on a muster roll which was issued in advance every month. The respondents have not been appointed against any contract or letter of appointment. The respondents have not performed any work after October 2021. They had not been engaged after October 2021. They did not produce any evidence of performance of any work or having received any payment subsequent to October 2021. 5. Learned advocate appearing for the appellants has contended that, the writ petitioners were engaged for seasonal and temporary work in respect of specific projects and that, their nature of work was not of permanent nature. 6. They did not produce any evidence of performance of any work or having received any payment subsequent to October 2021. 5. Learned advocate appearing for the appellants has contended that, the writ petitioners were engaged for seasonal and temporary work in respect of specific projects and that, their nature of work was not of permanent nature. 6. Referring to the minutes of the meeting dated July 5, 2018 of the General Body of the Zilla Parishad, Northern Middle Andaman, learned advocate appearing for the appellants has contended that, such minutes do not contain any decision and that the same was mainly a tool for collective bargaining at the level of the administration, at best. 7. Referring to the provisions of the Andaman and Nicobar Islands (Panchayat) Regulation, 1994 and the Andaman and Nicobar Islands (Panchayat Administration) Rules, 1997 learned advocate appearing for the Administration has contended that, Zilla Parishad does not have any power to appoint any employee. Such power of appointment is with the Lieutenant Governor. Administration through the Lieutenant Governor has deep and pervasive control over the functioning of the Zilla Parishad. 8. Learned advocate for the Administration has relied upon two decisions of the Division Bench rendered on January 12, 2011 in MAT 001 of 2011 and February 27, 2009 in MAT 030 of 2008 to the effect that Lieutenant Governor cannot exercise administrative control in matters regarding appointment or removal of employees at the Zilla Parishad which have been held to be erroneous by the Hon’ble Supreme Court by the order dated March 9, 2022 passed in Civil Appeal No. 82255-8257/2009. 9. Learned advocate appearing for the appellant has contended that, the resolution of the Zilla Parishad was merely recommendary in nature, never acted upon and consequently cannot assist the respondents. Such minutes have no legal strength and sanction in the eyes of law. The Administration has never approved the appointment of the respondents or given any post sanction to the request mentioned in the minutes. 10. Learned advocate appearing for the appellant has contended that the impugned judgement and order should be set aside. 11. Learned advocate appearing for the respondents has reiterated the arguments advanced before the learned Single Judge. He has contended that, the writ petitioners were engaged as work charged daily rated mazdoors, by the Administration. 10. Learned advocate appearing for the appellant has contended that the impugned judgement and order should be set aside. 11. Learned advocate appearing for the respondents has reiterated the arguments advanced before the learned Single Judge. He has contended that, the writ petitioners were engaged as work charged daily rated mazdoors, by the Administration. The writ petitioners were entitled to the benefits of the office memorandum dated June 7, 1988 more particularly since the Administration had extended the benefits of such office memorandum to several similarly situated and circumstanced daily rated mazdoors working under the Administration. In support of such contentions, he has drawn the attention of the Court to the various orders passed by the High Court as well as by the Supreme Court in this regard and as referred to in the impugned judgement and order. He has contended that, the impugned judgement and order should be upheld. 12. Fact that the writ petitioners had been working as daily rated mazdoors on and from 2006 with the Zilla Parishad, North and Middle Andaman, has not been denied by the appellant. Appellant has questioned the appointments of the writ petitioners as not being done in accordance with law. 13. Writ petitioners had worked in their respective posts since the year 2006. The posts at which they had worked have been described in paragraph 8 of the writ petition. Paragraph 8 of the writ petition would demonstrate that, the posts at which the writ petitioners had worked were permanent in nature and should ideally be manned by permanent employees. 14. Factum that the writ petitioners not being engaged after October 2021 has been canvassed to establish that, the nature of work of the writ petitioners were seasonal in nature. With respect, we are unable to accept such a contention in view of the fact of the nature of post at which the writ petitioners had worked over a period of 15 years. The sheer length of time and the nature of duties that the writ petitioners had discharged at their respective posts would establish that, the nature of work was not seasonal but in fact perennial. 15. The office memorandum dated June 7, 1988 had extended certain benefits to daily rated mazdoors. The writ petitioners having fallen in such category are entitled to the benefits of such office memorandum. 15. The office memorandum dated June 7, 1988 had extended certain benefits to daily rated mazdoors. The writ petitioners having fallen in such category are entitled to the benefits of such office memorandum. The learned Single Judge has by the impugned judgement and order recognised the right of the writ petitioners to receive the benefits under the office memorandum dated June 7, 1988 and directed implementation thereof. We have not found any perversity with such a direction as contained in the impugned judgement and order requiring a reversal thereof. 16. Jagjit Singh (supra) has decided on the issue as to whether temporarily engaged employees are entitled to a minimum of the regular pay scale, along with dearness allowance on account of their performance of the same duties which are discharged by those engaged on regular basis, against sanctioned post. The Hon’ble Apex Court has answered such issue by holding that, all temporary employees concerned, would be entitled to draw wages at the minimum of the pay scale at the lowest grade in the regular pay scale, extended to regular employees holding the same post. 17. Jagjit Singh (supra) has been relied upon by the appellant in support of the contention that, the writ petitioners were unsuccessful in establishing their appointment by the administration and that the nature of their job was not perennial. 18. In the facts and circumstances of the present case, the writ petitioners had been appointed as daily rated mazdoors over a period of time in order to discharge duties which were perennial in nature. They had been paid by the Zilla Parishad from out of the funds provided by the Administration. Administration at this stage should not be permitted to disown their appointment as daily rated mazdoors and extending the benefits of the office memorandum dated June 7, 1988. 19. The resolution of the Zilla Parishad dated July 5, 2018 cannot be construed to have questioned the administrative control of the Administration over its affairs. Such a resolution cannot be struck down on the basis of the Regulation cited on behalf of the appellant. On the parity of the same reasoning, the judgement of the Supreme Court dated March 19, 2022 has no manner of application in the facts and circumstances of the present case. 20. In view of the discussions above, we find no merit in the instant appeal. 21. On the parity of the same reasoning, the judgement of the Supreme Court dated March 19, 2022 has no manner of application in the facts and circumstances of the present case. 20. In view of the discussions above, we find no merit in the instant appeal. 21. MAT 17 of 2022 along with all connected applications are dismissed without any order as to costs. BIBHAS RANJAN DE, J.-I agree.