The court affirmed that appointments made by municipalities under Section 53(4) of the West Bengal Municipal Act, 1993 do not require prior approval, thus entitling the appointed individual to pensionary benefits.

JUDGMENT :

ARIJIT BANERJEE, J.

1. This appeal is directed against a judgment and order dated March 23, 2022, whereby the writ petition of the respondent no. 1 herein being WPA 4259 of 2016, was disposed of by a learned Judge of this Court.

2. The respondent no. 1/writ petitioner was temporarily appointed in the post of Resident Medical Officer (in short RMO) in Dum Dum Municipality, by letter dated June 6, 1998, on probation for a period of 6 months. He was placed in the scale of pay of Rs. 2,200/- - 4,000/-. By a resolution dated December 29, 1998, the Municipality confirmed the writ petitioner’s service as RMO with effect from December 1, 1998, in the scale of pay which he was then enjoying.

3. The writ petitioner retired from service upon superannuation on August 31, 2015.

4. The writ petitioner’s claim for pensionary benefits was however negated by the State Authorities on the ground that he was not appointed in a sanctioned post. Prior approval of the State Government was not obtained for his appointment.

5. This prompted the writ petitioner to approach the writ Court by filing W.P.A 4259 of 2016. The writ petition was allowed by a learned Single Judge by a judgment and order dated November 10, 2016 by relying on a Division Bench judgment dated January 30, 2008, passed in M.A.T. 704 of 2007 (Chairman, Dum Dum Municipality and Ors. v. Dr. Debranjan Biswas and Anr.). The learned Judge directed the State respondent authorities to release the petitioner’s retiral benefits.

6. That order was carried in appeal by the State respondents by way of M.A.T. 588 of 2017. The Division Bench disposed of the appeal by a judgment and order dated November 27, 2017, setting aside the order of the learned Single Judge on the ground that the case of Dr. Deb Ranjan Biswas was not similar to the case of the writ petitioner. The writ petition was remanded for fresh hearing by the learned Single Judge having determination in the matter, after exchange of affidavits.

7. The basic point that was urged by the State before the learned Single Judge as also before us is that the appointment of the writ petitioner was not in a sanctioned post.

8. The writ petitioner relied on a Government Order dated August 19, 2009, whereby an earlier Government Order dated May 7, 2009 was amended. The said two Government Orders are extracted below:

“GOVERNMENT OF WEST BENGAL

DEPARTMENT OF MUNICIPAL AFFAIRS

WRITERS’ BUILDINGS, KOLKATA

ORDER

No. 207/MA/O/C-4/1A-7/2000

Dated, Kolkata, the 7th Day of May, 2009

WHEREAS it appears that a considerable number of appointments/promotions were made in a number of Municipalities against sanctioned vacancies holding erstwhile Scale of Pay of Rs. 380-910/- since revised to Rs. 4000-8850/- and below between the period from the 14th day of July, 1994 to the 15th Day of October, 2000 (hereinafter referred to as the aforesaid period).

AND WHEREAS in absence of approval of the State Government the Municipalities are facing difficulties relating to the finalisation of pension cases of the retired employees.

AND WHEREAS processing of such cases by the Directorate of Local Bodies, with the approval of this Department, taking considerable time.

NOW, THEREFORE, the Governor, for quick disposal of all pending cases, is pleased hereby to authorise the Director of Local Bodies, West Bengal to issue orders according post-facto approval of appointments/promotions made by the Municipalities against sanctioned vacancies holding erstwhile Scale o