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Judgment
The writ petitioner is aggrieved by his service being treated as having commenced on 3rd April, 1990 whereas he claims that he was absorbed in service in April, 1989 itself consequent upon a circular dated 19th April, 1989 issued by the West Bengal State Co-operative Marketing Federation Limited (BENFED). The writ petitioner as on April, 1989 was working as causal worker in the BENFED at Siliguri.
By an order dated 19th April, 1989 it was decided that casual workers who have been engaged from time to time in perennial type of work and have completed three years continuous service as such with 240 days of work, from initial engagement are absorbed in regular service of BENFED in the post of Assistant cum Godown Keeper/Night Guard cum Peon in the pay scale of Rs.300-685-230-410/- respectively.
It was also stipulated that it shall take effect from the date of the joining of the new assignment in the vacancy created/existing subject to the certain terms and conditions. In the said order dated 19th April, 1989 a list of fifteen persons were mentioned in which the writ petitioner's name was against serial no. 3. It is further stipulated in the order that "the places of posting of regular employees will be determined on receipt of the aforesaid report from the concerned officer."
In the said list the current place of engagement of fifteen persons were indicated.
The writ petitioner claims to have joined the service of the BENFED at Siliguri under the very same circular. No joining report is, however, produced along with the writ petition.
The actual place of posting on the vacancy assessment by BENFED in the State was indicated on 3rd April, 1990. In an order to that effect dated 2nd April, 1990, the fifteen persons mentioned in the earlier order were posted at different places in the State. The writ petitioner came to be posted at Siliguri branch.
As per gradation list prepared of employees of BENFED, the writ petitioner submits that persons who have joined after April, 1989 have been placed above him. His service is being treated as having commenced only on 3rd April, 1990 and not from April, 1989 as a consequence whereof he has lost one year of service and hence he has been deprived of the benefits of pay scale revision based on length of service under ROPA 2009.
It appears to this Court that while it is true that the expression "shall be absorbed", has been used in the circular in the order dated 19th April, 1989 the clarification is available in the second page of the order in the second paragraph, which has been set out herein above. The clarification is to be extent that the identified fifteen casual employees would have to join after identification and fixation of the place of posting.
The writ petitioner would argue that since he was allowed to join by his superior in the Siliguri office, he must be deemed to have been absorbed much before any other person of those fifteen causal employees.
The argument of the petitioner at first glance appears to be alternative but on a deeper assessment, betrays as a gross impropriety.
The circular dated April, 1989 containing the order proposing absorption must in this facts be deemed only an expression in principle by the State of its intention to regularise fifteen persons including the writ petitioner. The same, however, cannot be deemed as an absorption by itself until a vacancy is formally identified, and a posting order is issued, by the State and the writ petitioner joins in such identified and allotted post.
Since this is the procedure rule and/or law to be followed in this regard the writ petitioner's joining if at all in service as permanent employee at Siliguri in April 1989, must be contrary to the procedure laid down herein above.
It is now well settled that there is no estoppel against law. If the writ petitioner in fact has so joined and/or had been allowed to join at Siliguri the same by itself is an illegality. It is quite possible that the writ petitioner who was already a casual worker in such office for three years prior thereto, may have been allowed to join and continue work in the usual course without knowledge of the fact that a joining report under 1989 Circular has been accepted by the Authorities, if at all. The same cannot frustrate the requirement of identifying vacancies or posts and consequential thereupon the benefits of full and actual absorption. The writ petitioner cannot be allowed to steal a march over the other 14 persons and take advantage of an illegality.
In those circumstances, I do not find any fault with the assessment by the Authorities that the writ petitioner's service as permanent employee must be deemed to have commenced in April 1990.
For the aforesaid reasons, the writ petition must fail and is dismissed.
No order as to costs.
Urgent photostat certified copy of this order, if applied for, be given to the parties upon compliance of all formalities.