Form No. J (2)

IN THE HIGH COURT AT CALCUTTA CIVIL APPELLATE JURISDICTION APPELLATE SIDE Present:

The Hon’ble Justice Debangsu Basak And The Hon’ble Justice Smita Das De FMA 291 of 2025 IA NO: CAN/1/2025 Md. Shamim Afzal vs.

The State of West Bengal & Ors.

For the Appellant : Md. Shahjahan Hussain, Advocate Mr. Mohammed Amin, Advocate Mr. Ghulam Muztaba, Advocate Ms. Mahjabeen, Advocate Mr. Prithwiraj Biswas, Advocate For the State : Mr. Jahar Datta, Advocate Mr. Bipin Ghosh, Advocate For the K.M.C. : Mr. Alak Kr. Ghosh, Advocate Mr. Swapan Kr. Debnath, Advocate Heard on : 13.03.2025 Judgment on : 13.03.2025 DEBANGSU BASAK, J.:-

1. Appeal is at the behest of the writ petitioner and directed against an order dated January 13, 2025 passed in WPA 2534 of 2022.

2. By the impugned order, the learned Single Judge, noticing that, the appellant was a temporary worker of the Kolkata Municipal Corporation refused to direct regularization of service on the ground that mere continued service in a sanctioned post over an extended period does not confer any automatic right of regularization. Learned Single Judge noted that, the appointment of the appellant before us was not in accordance with the recruitment rules of Kolkata Municipal Corporation (KMC) and that, the appellant failed to demonstrate that the appointment was through a legitimate recruitment process.

3. Learned advocate appearing for the appellant submits that, appellant is entitled to regularization due to the period of service that the appellant put in at the post. He submits that, appellant is working more than 15 years at the post. He also points out that once, the appellant was granted a promotion from Group-D to Group-C. He relies upon 2024 INSC 1034 (Jaggo versus Union of India & Ors.) and submits that, the ratio of (2006) 4 Supreme Court Cases 1 (Secretary, State of Karnataka versus Uma Devi (3)) is not a complete bar for the purpose of grant of regularization. He submits that, the appellant is similarly placed and circumstanced as that of Jaggo (supra) and any event the ratio of Jaggo (supra) applies to the facts of the present case. Similar relief as extended to the writ petitioner in Jaggo (supra) should be granted to the appellant herein.

4. Without prejudice to his earlier part of his contentions, learned advocate for the appellant draws the attention of the Court to a resolution of KMC dated October 23, 2019. He submits that, there was a proposal for enhancement of consolidated remuneration of 12 contractual workers of KMC. He submits that, in the event, regularization is not permissible, the benefit of enhancement of consolidated remuneration as extended to some of the other contractual employees of the K.M.C be extended to the appellant.

5. Learned advocate appearing for the K.M.C. submits on instruction that, the resolution dated October 23, 2019 extending consolidated remuneration to 12 contractual workers was subsequently withdrawn by a resolution dated April 5, 2023. He submits that, no financial benefit was extended to the 12 contractual workers as noted in the resolution dated October 23, 2019.

6. On the aspect of regularization, learned advocate for the K.M.C submits that, the appointment of the appellant is illegal and not irregular. Moreover the post at which, the appellant is working is reserved for Scheduled Caste and Scheduled Tribes candidates which the appellant is not.

7. Learned advocate for the K.M.C submits that, when K.M.C undertook to fill up post at which the appellant is working through a selection process, the appellant filed a writ petition. Such writ petition was disposed of by directing the appellant to make a representation for enhancement of consolidated remuneration. Appellant made such application but the request for enhancement of consolidated remuneration was rejected on the ground that, the appellant failed to produce any relevant documents.

The decision of the rejection of enhancement was not challenged.

8. In reply, learned advocate appear