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IN THE HIGH COURT AT CALCUTTA
SAUGATA BHATTACHARYYA, J.
Sudipto Bandyopadhyay @ Banerjee – Petitioner
Versus
The State of West Bengal and Others – Respondents
WPA No. 26160 of 2018
Decided On : 21-12-2023
Promotion - West Bengal Municipal Employees’ (Recruitment) Rules, 2005 - Entry 30 of the amended recruitment Rules of 2008 - [30] - The court discussed the provisions of the West Bengal Municipal Employees’ (Recruitment) Rules, 2005 and the amended recruitment Rules of 2008, particularly focusing on the permissibility of promotion to the post of Sanitary Inspector from a lower post, and the eligibility criteria for such promotion. The court highlighted the anomaly in the interpretation of the rules and emphasized the importance of upholding the avenue of promotion provided in the rules.
Fact of the Case:
The petitioner, a Conservancy Supervisor, sought promotion to the post of Sanitary Inspector. The Director of Local Bodies denied the promotion, citing breach of West Bengal Municipal Employees’ (Recruitment) Rules, 2005 as amended.
Finding of the Court:
The court found that the Director's decision to deny promotion based on the petitioner's position as a Conservancy Supervisor was contrary to the provisions of the amended recruitment Rules of 2008. The court set aside the decision and directed the authorities to promote the petitioner to the post of Sanitary Inspector.
Issues: The issues revolved around the permissibility of promotion to the post of Sanitary Inspector from a lower post, the eligibility criteria for such promotion, and the interpretation of Entry 30 of the amended recruitment Rules of 2008.
Ratio Decidendi: The court emphasized that the interpretation of the rules should not render the avenue of promotion provided in the rules nugatory. It highlighted the anomaly in the Director's reasoning and set aside the decision, directing the promotion of the petitioner to the post of Sanitary Inspector.
Final Decision: The court directed the concerned authorities to promote the petitioner to the post of Sanitary Inspector within four weeks and allowed the petitioner to seek arrear benefits connected to the promotion.
JUDGMENT :
SAUGATA BHATTACHARYYA, J.
1. Petitioner is working in the post of Conservancy Supervisor who is desirous to be promoted to the post of Sanitary Inspector.
2. Learned advocate representing the petitioner submits that permission was accorded by the Director of Local Bodies vide a memo dated 21st/22nd September, 2010 addressed to the Chairman of Hooghly Chinsurah Municipality (hereinafter referred to as the ‘said municipality’) whereby the municipality was allowed to recruit in the post of Sanitary Inspector along with three other posts. While according permission the Director directed the said municipality to follow the relevant provisions of the West Bengal Municipal Employees’ (Recruitment) Rules, 2005. Subsequently, steps were taken by the municipality for recruiting in the post of Sanitary Inspector by promotion and to that extent a gradation list was prepared as it emanates from the resolution dated 10th March, 2015. At the relevant portion of the said resolution it was resolved that as per the said gradation list the candidate against serial no. 1 was not found to be ineligible and petitioner was at the second position of the gradation list and it was decided that on verification of his certificate relating to qualification he is to be recruited in the post of Sanitary Inspector on obtaining necessary approval from the Director of Local Bodies. In terms of said resolution dated 10th March, 2015 vide a letter dated 15th July, 2016 prayer was made to the Director of Local Bodies for according approval to the promotion which is to be granted to the petitioner from the post of Conservancy Supervisor to Sanitary Inspector. On receipt of such prayer from the said municipality Director of Local Bodies took decision as contained in memo dated 10th January, 2018 whereby prayer of the municipality for granting promotion to the petitioner was spurned on the ground that promotion from the post of Conservancy Supervisor to the post of Sanitary Inspector is impermissible since the same was found to be in breach of West Bengal Municipal Employees’ (Recruitment) Rules, 2005 as amended. The said decision of the Director of Local Bodies which was communicated vide a memo dated 10th January, 2018 is the subject matter of challenge in the present writ petition.
3. The learned advocate representing the petitioner draws attention of this Court to the relevant provisions as contained in the West Bengal Municipal Employees’ (Recruitment) Rules, 2005 vis-a-vis the provisions relating to promotion to the post of Sanitary Inspector as provided under West Bengal Municipal Employees’ (Recruitment) Rules, 2005 as amended vide a notification dated 28th November, 2008. According to the petitioner in terms of substituted Entry 30 (Sanitary Inspector) promotion from the post in connection with which lower pay scale is attached to the post of Sanitary Inspector is permissible provided other eligibility criteria in terms of qualification clause against Entry 30 clause (b) are fulfilled. It is also submitted that since permission was accorded on 21st/22nd September, 2010 and the selection was made complete by adopting resolution of the municipality dated 10th March, 2015 the West Bengal Municipal Employees’ (Recruitment) Rules, 2005 as amended vide a notification dated 28th November, 2008 is applicable in case of promotion of the petitioner to the post of Sanitary Inspector. Therefore, the subsequent Rules of 2017, according to the petitioner, is not applicable in the present case. Reliance has also been placed on clause (a) of Entry 30 of the aforesaid amended Rules of 2008 in order to substantiate that though in terms of un-amended Rules of 2005 promotion was impermissible but in terms of amended Rules of 2008 promotion needs to be given first preference and in absence of suitable candidate direct recruitment would be the next option. While throw
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