High Court
Case Details
WP(C) 1907/2011 BEFORE HON’BLE MR JUSTICE B.K.SHARMA Heard Mr M Singh, learned counsel for the petitioner. Also heard Mr G Uzir, lear ned counsel representing the respondent No.4. I have also heard Mr S Chakraborty , learned State counsel. By means of this writ petition, the petitioner has prayed for a direction to the respondents to pay him salary, both arrear and current in the post of Tax Colle ctor. The petitioner was purportedly engaged as casual labourer in the Sapatgram Town Committee and he joined on 1.2.2005. Annexure- K/1 is the joining report dated 1.2.2005, by which the petitioner whi le joining as casual labourer on 1.2.2005 also referred to the purported order of the Chairman. However, there is no particulars in respect of the order purpor tedly passed by the Chairman. Annexure-K/2 is the resolution No.5 of the Board of the Town Committee purported ly approving the engagement of the petitioner and allowing him to continue as Mu ster Roll Worker w.e.f. 30.12.2005. By Annexure-K/3, the services of the petitioner as Tax Collector was regularized in the time scale of pay of Rs.2890/- - 5725/- w.e.f. 1.2.2007. The letter was issued to the petitioner in response to his application dated 2.1.2007.
Legal Reasoning
The aforesaid Annexure-K/2 resolution and K/3 letter dated 11.4.2007 and 25.11.2 007 are under the signature of the then Chairman of the Town Committee. It is no t understood as to how the Chairman could have made such appointment without fol lowing the due procedure. The petitioner has also annexed the photo copy of the Service Book bearing the signature of the then Chairman. By Annexure-K/4 letter dated 27.1.2009, the same very Chairman of the Town Commi ttee made a request to the Director, Municipal Administration, Assam for approva l of appointments against vacant posts. Thus admittedly appointments had been ma de without the approval of the said Director. By the said letter approval was pr ayed for in respect of 13 posts including 2 posts of Tax Collector. By Annexure-K/5 letter dated 12.3.2009, the Chairman/ Administrator of the Town Committee again prayed for approval of appointment entitling the appointees to r eceive their salaries. By Annexure P/6 letter dated 27.1.2008, the same very Chairman of the Town Commi ttee again requested the Director of Municipal Administration to accord approval of appointments including the appointment of the petitioner. It was stated in t he letter that the petitioner and others were appointed subject to approval of t he Govt in the Finance Department. Law is well settled that when any appointment is made subject to approval, witho ut such approval no sanctity can be attached to such appointment. In the counter affidavit filed by the respondent No.4, it has been stated that s ome of the documents annexed to the writ petition are fictitious. It has been st ated that the Town Committee office does not have any Service Book pertaining to the petitioner. The affidavit further states about the purported enquiry conduc ted in respect of the affairs relating to appointments. It has also been stated that the service of the petitioner as casual employee was dispensed with effect from 29.4.2011. Although the writ petition was filed on 20.10.2011 there is no c hallenge to the dispensation of the services of the petitioner. In the counter affidavit filed by the respondent No.2 i.e. the Finance Departmen t, it has been stated that it is the sole responsibility of the Town Committee t o pay salary to its employees and the Finance Department has nothing to do with the matter. Mr Chakraborty, learned State counsel has produced the copy of the letter dated 25.4.2011 addressed to the learned State counsel by the Director, M unicipal Administration. In the said letter also, it has been stated that the Town Committee being autonomous and elected Institution of the self governance, the Director of Municipal Administration has nothing to do with the matter. The method and manner in which petitioner was appointed by the Chairman of the T own Committee has been noted above. Mr Singh, learned counsel for the petitioner has submitted that as per provisions of Section- 50 of the Municipal Act, the T own Committee is empowered to make appointment. However, needless to say that th e said power cannot be arbitrary. Deriving power from the said provisions the Ch airman of the Town Committee cannot make appointment on pick and choose basis. In the instant case, the petitioner first joined as casual labourer on 1.2.2005 without any order of the Town Committee. He was allowed to continue as such whil e the purported resolution No.5 was passed by the Board in its meeting dated 11. 4.2007. The said resolution has been certified to be true by the then Chairman o f the Town Committee. However, the resolution as such of the owever, the resolu tion as such of the Board is not before this Court. Thereafter solely on the bas is of the petition dated 2.1.2007 submitted by the petitioner he was regularized as Tax Collector. Thus after 2 years of his appointment as casual employee he w as regularized. On the other hand, by the aforementioned letters addressed to th e Director of Municipal Administration the Chairman of the Town Committee sought for approval of the post and appointment. In the above context, Mr G Uzir, learned counsel representing the Town Committee submits that everything was done as per whims and caprices of the then Chairman of the Town Committee and accordingly the Town Committee cannot be saddled with the liability to pay salary to the petitioner. Moreover, the dispensation of th e services of the petitioner w.e.f. 29.4.2011 is also not under challenge in thi s proceeding. Considering the matter in its entirety, this writ petition is disposed of provid ing that the respondent No.1 shall pass appropriate order in the matter taking n ote of all the attending facts and circumstances and in accordance with law. Let the order be passed as expeditiously as possible and preferably within 31st of July, 2013. While doing so, he may hear all the parties involved including the T own Committee.