IMPORTANT POINT
The court emphasized the importance of granting terminal benefits to the heirs of the deceased employee, despite the non-compliance of appointment rules.

JUDGMENT :

Amrita Sinha, J.

1. The petitioners are the heirs and legal representatives of the original writ petitioner Santosh Kundu, a retired employee of the Santipur Municipality, who expired during the pendency of the writ petition. The employee was appointed as Technical Assistant on 2nd March, 1991. In the meeting of the Board of Commissioners held on 31st December, 1992, resolution was adopted to grant scale of pay for the post of Road Sarkar to the employee with effect from 1st January, 1993. On and from 1st March, 1995 the employee was promoted to the post of Sub Assistant Engineer.

2. The Chairman of the Municipality, by communicating letter dated 18th October, 2017, approached the Director of Local Bodies for issuance of approval of the employee to the sanctioned post of Sub Assistant Engineer from the date of his promotion that is 1st March, 1995. The Director of Local Bodies, vide communication dated 27th September, 2021, intimated the Chairman of the Municipality to forward copy of the government approval of the appointment of the employee to the post of Sub Assistant Engineer and an approved profile (IOSMS) of the employee. The employee retired from service on attaining his normal age of superannuation on 31st January, 2022.

3. The request for post facto approval for promotion of the employee stood rejected vide communicating memo of the Deputy Secretary, Urban Development and Municipal Affairs Department dated 16th December, 2022. The same is impugned in the instant writ petition.

4. The ground for rejection of the prayer for post facto approval for promotion is that the prayer cannot be entertained as the West Bengal Municipal Employees’ (Recruitment) Rules, 2005 does not permit such promotion.

5. It has been submitted that as the Municipality enjoyed the service of the employee in the post of Sub-Assistant Engineer with effect from 1st March, 1995 and the employee continued to serve in the said post till his superannuation on 31st January, 2022, accordingly, the employee ought to be paid his terminal benefits in accordance with the scale of pay of Sub-Assistant Engineer.

6. Reliance has been placed on the order passed by the Department of Municipal Affairs on 7th May, 2009 authorising the Director of Local Bodies to issue orders, accord post facto approval of appointment/promotion made by the municipalities against sanctioned vacancies during the period 14th July, 1994 to 15th October, 2000 holding erstwhile scale of pay of Rs. 380/-to Rs. 910/-since revised to Rs. 4,000/-to 8,850/-and below.

7. It has been submitted that as the petitioner was promoted during the period as mentioned in the order of the department on 7th May, 2009, accordingly, the Director of Local Bodies ought to accord post facto approval for promotion to the employee in the post of Sub-Assistant Engineer.

8. Reliance has been placed on the judgment delivered by a coordinate Bench of this Court on 15th November, 2019 in WP No. 10717(W) of 2015 (Debdas Saha –vs-State of West Bengal & Ors.).

9. Reliance has also been placed on the order dated 9th September, 2022 passed by this Bench in WPA No. 5283 of 2019 in the matter of Sri. Bhabani Shankar Roy –vs-State of West Bengal & Ors..

10. Prayer has been made for grant of post facto approval of promotion to the post of Sub-Assistant Engineer and pass order for release of terminal benefit in favour of the heirs of the deceased employee.

11. Learned advocates representing the respondents oppose the prayer of the petitioners.

12. It has been submitted on behalf of the State respondents that as per the West Bengal Municipal Employees’ (Recruitment) Rules, 2005 a candidate for the post of Sub-Assistant Engineer must possess diploma in civil or electrical engineering from any institution recognized by the Government and may be appointed either by direct recruitment or by promotion only in the case of permanent employee with the educational qualification of direct recruitment and with at least five years