An illegal appointment cannot be regularized, and an employee cannot be absorbed in posts created and approved under the 1995 Act based on long-term service alone.

JUDGMENT

Hiranmay Bhattacharyya, J. - The writ petitioner has prayed for absorption as Rent Collector in the Office of the Board of Waqf, West Bengal (for short 'the Board') and to allow periodical promotions, incremental benefits as well as retiral benefits including pension.

2. The writ petitioner claims to have been appointed sometimes in the year 1989 as Rent Collector in the office of the Official Mutawalli and is presently working under the Direct Management Section of the Board as a Rent Collector. The then Chief Executive Officer of the Board allowed the scale of pay of Rs. 3350-6325 to the petitioner with effect from 01.04.1997. It is the further case of the writ petitioner that the Board approached the Government on several occasions for absorbing him to the post of Rent Collector but no positive response came from the end of the Government. In the meantime, the Governor was pleased to approve the creation of 52 additional posts for the Board including four posts of Rent Collector (LDA) by a Government order no. 558-MD dated 11.04.2008. After creation of such posts, the Board in its meeting held on September 5th, 2008 resolved that the writ petitioner be absorbed against the posts of Rent Collector (LDA) with grade pay with effect from 01.09.2008 as per the rules and regulations of the Board.

3. The Chief Executive Officer of the Board by a letter dated 06.03.2009 sought for administrative approval for absorption of the writ petitioner under the regular establishment of the Board from the Secretary, Minority Affairs and Madrash Education. The writ petitioner, by a letter dated May 31st, 2011, requested the Chief Executive Officer of the Board to take immediate action for his absorption and to grant all service benefits in accordance with law. The writ petitioner alleges inaction on the part of the respondent authorities.

4. Mr. Bhattacharyya, learned Advocate for the petitioner referred to the provisions laid down under Section 24 of the Waqf Act, 1995 (for short 'the 1995 Act') and contended that the Board in consultation with the State Government shall determine the number of officers and other employees as well as the details thereof. He further contended that the function of the State Government ended with the approval and creation of 52 Additional Sanctioned posts for the Board and the Chief Executive Officer has the exclusive authority to make appointments to the said posts created and approved by the State Government. He contended that regularisation/absorption of the appointment of the petitioner is permissible under Article 162 of the Constitution of India and further ratification of appointment with retrospective effect is permissible as held by the Hon'ble Supreme Court in the case of Maharashtra State Mining Corporation vs. Sunil reported at 2006 (5) SCC 1996.

5. Mr. Bhattacharyya contended that the expression 'consultation' appearing in Section 24(1) of the 1995 Act does not in any manner abrogate the right of the Board to appoint persons in the vacant posts and consultation does not mean seeking concurrence or consent from the State Government. In support of such contention, he relied upon the decision of the Hon'ble Supreme Court in the case of Supreme Court Advocate-on-Record Association and others vs. Union of India reported at (1993)4 SCC 441. He also submitted that Article 162 of the Constitution permits executive action in the absence of any legislation and in support of such contention he placed reliance upon a decision in the case of B.N. Nagaranjan and others vs. State of Mysore and others reported at AIR 1966 SC 1942.

6. Mr. Bhattacharyya also relied upon an unreported decision in the case of Pritam Kanjilal vs. State of West Bengal and others delivered on August 18, 2022 in WPA 10784 of 2017 in support of his contention that the writ petitioner can be absorbed in the vacant posts of Rent Collector. Mr. Bhattacharjee also relied upon a decision of Hon'ble Supreme Court in the case of Ashok Kumar Sah