Form No.J(2)

IN THE HIGH COURT AT CALCUTTA

CONSTITUTIONAL WRIT JURISDICTION

APPELLATE SIDE

Present :

The Hon’ble Justice Raja Basu Chowdhury

WPA 25403 of 2024

Rekha Pal @ Rekha Gautam.

versus

The Baidyabati Municipality & Ors.

For the petitioner : Mr. Partha Sarkar,

Mr. Abhijit Basu.

For the Municipality : Mr. Pratick Ch. Das,

Ms. Soma Chowdhury.

Heard on : 11.11.2025. Judgment on : 11.11.2025

Raja Basu Chowdhury, J (Oral):

1. Being aggrieved with the failure on the part of the Baidyabati Municipality to disburse the retiral benefits in favour of the petitioner who had retired from service with effect from 31^st January, 2017, the

writ petition has been filed.

2. The respondents would contend that though the petitioner was engaged and had duly discharged duties during her service tenure, she is not entitled to the retiral benefits, since her post was not sanctioned. According to the respondents since the West Bengal Municipal (Employees Death cum Retirement Benefit) Rules, 2003 (in short the “said Rules”) can only be made applicable to permanent employees and

since without the approval of the Government the petitioner could not be treated as a permanent employee, the petitioner cannot be entitled to retiral benefit. The affidavit-in-opposition and the affidavit-in-reply thereto filed in Court is taken on record.

3. Having heard the learned advocates for the parties and having considered the materials on record and noting the provisions of Section 54 of the West Bengal Municipal Act, 1993 (hereinafter referred to as the “said Act”) and in particular sub-section(3) thereof, I find that the question that falls for consideration is whether the municipality was competent to appoint an employee other than employees mentioned in sub-section (1) of Section 54 of the aforesaid Act without the approval of the State Government. To appropriately appreciate the above provision Section 54 of the said Act is extracted hereinbelow:

“54. Cadre of common municipal service, appointments, etc.

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[(1) The State Government may constitute cadres for the State in respect of Executive Officers, Health Officers, Engineers and Finance Officers referred to in sub-section (1) of section 53.]

[(2) The State Government shall be the appointing authority of all the officers borne in the cadres constituted under sub-section (1), and shall be the authority to transfer such officers from one municipal area to another:]

[Provided that until the cadre is constituted under sub-

section (1), the Board of Councillors may, with the prior approval of the State Government, engage the officers to the posts of Health Officers and Engineers, sanctioned by the State Government, on contract basis or otherwise, and the qualifications and the recruitment procedure for such engagement shall be such as may be prescribed :

Provided further that the remuneration for such engagement shall be paid from the Municipal Fund.]

(3) The appointment of all other officers and employees [, not included in sub-section (1), ] shall be made by the Municipality [with the prior approval of the State Government] [and the order of such appointment shall be issued under the signature of the Executive Officer].

[(3A) The recruitment to the posts not required to be made through the West Bengal Municipal Service Commission constituted under sub-section (1) of section 3 of the West Bengal Municipal Service Commission Act, 2018 (West Ben. Act XII of 2018), shall be made through the open advertisement or through such other method as the State Government may determine from time to time.]

(4) Save as otherwise provided in this Act, the State Government may by rules provide for the [qualifications for] appointment, conditions of service and other allied matters relating to the officers and employees of Municipalities.

[(5) Notwithstanding anything contained in the foregoing provisions of this section or elsewhere in this Act, but subject to the provisions of sub-section (2), the Board of Councillors may, by resolution, decide to engage,