1982 Supreme(Cal) 325

High Court Of Calcutta
Sabyasachi Mukherji, J.
Ranajit Basu – Appellant
Versus
State Of West Bengal – Respondent
C.R. 1307 (W) of 1981
Decided On: September 10, 1982

Headnote:

WEST BENGAL LEGISLATIVE ASSEMBLY SECRETARIAT STAFF - TRANSFER - MALAFIDE - JURISDICTION OF COURT - CONSTITUTION OF INDIA, 1950 - ARTICLES 98, 187, 212(2), 309, 311 - WEST BENGAL SERVICE RULES, PART I - RULES 5(4), 5(23), 24, 97 TO 116 - WEST BENGAL LEGISLATIVE ASSEMBLY SECRETARIAT RULES, 1953 - RULE 6(1) - APPENDIX II. Held - (1) THE impugned order dated 4th of July, 1980 is hereby set aside and the respondents are directed not to give effect to the said order and to give to the petitioner all consequential reliefs. (2) THE order of the Hon'ble Speaker dated 4th of July, 1980 is hereby set aside and the respondents are directed not to give effect to the said order and to give to the petitioner all consequential reliefs. This however, will not in any event, prevent the Hon'ble Speaker from placing the petitioner's service in such manner within the Assembly as he considers fit and proper taking all factors into consideration.

Fact of the Case:

The petitioner was appointed as a temporary typist 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. 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. On the 1st of November, 1965 order of release was passed. 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. On the 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 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. 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.

Finding of the Court:

The impugned order was passed malafide. The petitioner was not an employee of the Government by the West Bengal General Service Rules. The petitioner's original appointment as a typist in the Public Health and Engineering Department of the West Bengal Government and his subsequent selection and appointment after giving up his post as a typist is not a continuous appointment. The petitioner was specifically selected and specifically appointed pursuant to his application made for the post of the reporter in the West Bengal Legislative Assembly Secretariat and he was subsequently promoted to the post of Chief Reporter. The petitioner did not belong to West Bengal General Service and as such he did not go on deputation to the West Bengal Legislative Assembly nor was he sent on foreign service terms to the West Bengal Legislative Secretariat. He, therefore, could not be recalled by the West Bengal Government to be sent back for employment in any post in the West Bengal General Services. The action of releasing the petitioner of the West Bengal Legislative Assembly in the facts and the circumstances of the case virtually amounted to a termination service of the petitioner in violation of the provisions of his legal rights. In the premises, the said action cannot be sustained.

Issues: 1. Whether the impugned order was passed malafide? 2. Whether the petitioner was an employee of the Government by the West Bengal General Service Rules? 3. Whether the petitioner's original appointment as a typist in the Public Health and Engineering Department of the West Bengal Government and his subsequent selection and appointment after giving up his post as a typist is a continuous appointment?

Ratio Decidendi: 1. THE impugned order was passed malafide. 2. THE petitioner was not an employee of the Government by the West Bengal General Service Rules. 3. THE petitioner's original appointment as a typist in the Public Health and Engineering Department of the West Bengal Government and his subsequent selection and appointment after giving up his post as a typist is not a continuous appointment.

Final Decision: THE rule is made absolute to the extent indicated above. In the facts and circumstances of the case there will be no order as to costs. Operation of this order will remain stayed for four weeks from today. The interim order already passed will continue in the meantime. Rule made absolute to the extent indicated. No costs.