Hazrat Mondal vs State of West Bengal & Ors.

The writ petition has been moved on service. The State of West Bengal is represented. However, despite service, as appears from the Affidavit of

service, none has appeared for the 8th respondent or the respondent nos. 6 and 7. The affidavit of service shall be kept on record.

The welfare State proposed to appoint support staff for a hostel attached to a Madrasah. Accordingly, it notified the selection process on November 3,

2015 and through an instrumentality of the 1st respondent issued interview letter to the petitioner. These are annexures P/1 and P/2 of the writ

petition. Pursuant thereto a selection process was duly held on January 6, 2016, which is Annexure P/3 to the petition. According to that decision it

was made clear that there would not be any direct appointment, but self-help group would be engaged temporarily as the agency of the State. That

self-help group, so appointed, would, in turn, engage/appoint suitable persons to the said posts. At Annexure P/4 the resolution of the said agency has

been annexed wherefrom it appears that the petitioner was appointed as a caretaker by the self-help group. After the aforesaid appointment was

made by the agency of the State, however, temporary, the State thereafter attempted to partially wash its hands off its liability as a model employer

vide Annexure P/6 at page 22 where it, inter-alia, provided as follows:

“7. The selected Local Self-Help Groups will man the position of posts of Caretaker (for Boys’ hostel) or Matron (for Girls’ hostel), Cook,

Helper, Night Gurad and Cleaner/Karmabandhu provided there would be no direct payment to anyone, rather payment of honorarium/remuneration

will have to be made through Local Self-Help Grops treated as Agencies to be selected by the Screening Committee in this regard, on submission of

bill. The educational qualification of the Caretaker/Matron should be Higher Secondary pass or equivalent or above. The post of Matron should be

reserved for female candidate only.â€​

On instructions, learned advocate for the State submits that pursuant to this notification at Annexure P/6 dated January 10, 2017, issued after the

appointment of the writ petitioner, as a caretaker, on July 12, 2016 the State had released the necessary funds in favour of the Madrasah arrayed as

respondent nos. 6 and 7, which apparently released the funds, in turn, in favour of the 8th respondent, but it is the 8th respondent which has not made

the payment to the writ petitioner for which reason the writ petitioner has not been paid. So the learned advocate for the State submits that the

petitioner could not have directly come up against the State of West Bengal because the notification issued after his appointment clearly stated that no

direct payment would be made by the State of West Bengal to anyone.

The said argument on its face is fallacious. The State accepts that the self-help group is its agency. The law is clear that the agent of a disclosed

principal cannot be sued except under the conditions given in the Indian Contract Act, 1872. Merely because it is the jurisdiction under Article 226 of

the Constitution of India which has been invoked would not mean that the immunity given to the agent of a disclosed principal shall be taken away.

Besides, where the selection process commenced on the clear understanding that self help group would be a mere agent of the State and not a

contractor, the State cannot evade its liability to make payment for the work which has been done ultimately for the benefit of the State by a citizen.

Even had it been a case of contract labour and the contractor, after taking money from the principal employer, had made default the labour would

have been entitled to the money from the principal employer subject to deduction from the contractor.

Accordingly, I am afraid I must overrule the objection taken by the learned advocate for the State of West Bengal that the writ petition was not

maintainable at the instance of the petitioner directly against the State of West Bengal and its authorities. Again, at the time when the appointment

was made and the writ petitioner joined service the notification as in Annexure P/6 was yet to see the light of the day. After the writ petitioner joined

services and rendered service it was not merely arbitrary, but also unconscionable, inequitable and unfair on the part of the State of West Bengal to

make an attempt to change the terms and conditions which the petitioner could legitimately have expected to prevail by saying that no direct payment

would be made.

Accordingly, the conduct of the State of West Bengal, in attempting to be a modern Pontius Pilate must have the same effect on this case as it had in

history. The State cannot, therefore, be absolved of its liability.

Therefore, without calling for any affidavit, but on the admitted position that the writ petitioner rendered services and money was released in his

favour as also in favour of other staff in the Madrasah attached hostel by the State through the Madrasah and through the channel of the agency of

the State being the 8th respondent, the writ petitioner shall be paid the honoraria/salary/payment to which he is entitled by the State of West Bengal

through appropriate authority being the Commissioner in the department of Minority Affairs and Madrasah Education subject to deduction and/or

adjustment and/or recovery from the amount payable and/or already paid to the 6, 7 or 8th respondent.

Since I have, by the above order, disposed of the grievance of the writ petitioner while securing the interest of the public exchequer no useful purpose

shall be served by keeping the writ petition pending. It is nobody’s case that the petitioner did not work from the date he was appointed and joined

the duty in July 12, 2016 and it is also nobody’s case that the hostel is functioning today.

Therefore, the writ petition is disposed of on the above terms by allowing to the above extent. There shall be no order as to costs.

The arrears of payment shall be made from a period of one month from the date of communication of this order subject to such recovery as aforesaid.