The creation of a new post by a municipal corporation without obtaining prior sanction from the State Government is illegal and not maintainable.

JUDGMENT :

Rai Chattopadhyay, J.

1. Petitioners are aggrieved with the impugned circular, being “Chief Manager (P)’s Circular No.51/VIII of 2021-22”, dated “January 29, 2022”, issued by the respondent Kolkata Municipal Corporation. The said circular was related to the subject matter of creation of 01(one) new post of Chief Manager (Systems) in the cadre of KMC Information Technology Service, under the Information Technology Department, in the Pay Level 19 of ROPA-2019 corresponding to Pay Scale PB-4B (Rs.28,000-52,000/-)+ Grade Pay Rs.7,600/- and framing of its Recruitment Regulations.

The said circular contained that, one post of Chief Manager (Systems) would be created by freezing operation of one post of Manager (Systems) and two post of Trolley Mazdoors. Also that such creation of post, would be in anticipation of the approval of the State Government, for the same.

Being aggrieved, the petitioners have preferred the present writ petition.

2. Petitioners are gainfully employed with the respondent no.1 and are serving in the posts of Deputy Manager (Systems). They have gathered working experiences for not less than four years and as many as twenty five years of service, respectively.

3. The Recruitment Regulation for the newly created post of Chief Manager (Systems) has been mentioned in the following manner:-

“3. For creation of the aforementioned 01 (one) post of Chief Manager (Systems) u/s 17 and its framing of its Recruitment Regulation u/s 604 of the KMC Act, 1980 post-facto approval of State Government may be solicited.”

4. The petitioners are aggrieved upon promulgation of the said impugned circular dated January 29, 2022 for various reasons. Mr. Raghunath Chakraborti, appearing for the petitioners has firstly submitted that his clients have the promotional avenue to the post of Manager (Systems), which are eight in number, as per the existing norms. He emphasizes that by freezing one of the vacancies vide the impugned circular, the respondent authority has infringed into their service condition, that too without offering them any opportunity of hearing.

5. Further it has been submitted that the petitioners, excepting three of them, have already completed the qualified period of service for promotion. Also that they are eligible to come within the zone of consideration, having completed the qualifying period of service already and in view of the vacancies having already accrued, in the promotional cadre. Therefore, it is stated that, changing service condition in any manner whatsoever by the respondent authority, without granting them any opportunity to be heard, would be an infringement of their fundamental rights.

6. Mr. Chakraborti has further made out the point with reference to Sections 17, 19 and 604 of the Kolkata Municipal Corporation Act, 1980, that the impugned circular is absolutely dehors the statutory provisions and thus illegal and could not be sustained in the eyes of law. It has been submitted that pursuant to the provision under Section 17 of the said Act, the respondent authority, before creation of any post or restructuring or the revising the cadre upwardly, should have to mandatorily obtain permission from the State Government, in accordance with the scheme of the said Act, the provision as above being mandatory under law. According to Mr. Chakraborti no post-facto approval shall satisfy the requirement of law. Also that the respondent no.1 could not have lawfully and justifiable issue any circular regarding creation of post in anticipation of the approval of the State Government. Mr. Chakraborti, on behalf of his clients, the petitioners, has sought for an order setting aside the impugned circular dated January 29, 2022.

7. Mr. Chakraborti has argued on the point that in case the appointing authority is to alter conditions of service, the law would require the authority to afford an opportunity of hearing to the employees to whom those conditions are applicable. On this point he has relied on a judgment of