Non-Teaching Employees Have To Be Treated And Regularized As Permanent Employees: Calcutta High Court

Background Facts

The notification issued by the technical branch of the Education Department of the Government of West Bengal stated that Malda Polytechnic was being taken over by the government. Further, another notification said that in every mess and hostel attached to an engineering and technological college, a hostel committee would be set up. This committee would be entrusted with the duty of maintaining the service records of the employees concerned. It said that these employees would be entitled to 50% of the dearness allowance sanctioned by the state government for their employees of comparable scale of pay. The employees would retire at the age of 60 years and be entitled to the retirement gratuity of half months’ pay for each completed year of service subject to a maximum of fifteen months. Further, as per the notification dated 28^th October 2014 the hostel and mess employees of state aided universities in West Bengal were to be treated as non-teaching employees of the respective institutions. Their salaries and allowances including other service benefits would also be the same as those of other non-teaching employees.

Madan Mohan Sarkar and others (“Respondents in this appeal”) filed a writ petition asking for an order in the nature of mandamus commanding the Malda Polytechnic and the Director of Technical Education & Training Govt. of W.B. (“Appellant”) to treat them as the employees of the college and to grant them the scale of pay and other allowances. The learned single judge by his judgment and order dated 21st May, 2010 held the writ petitioners to be permanent non-teaching Group- D employees of that college and on that basis were entitled to salaries and allowances. Aggrieved by the order, the appellant filed the present appeal.

The appellant contended that in approaching the writ court directly, the respondent writ petitioners had acted in derogation. Reliance was placed on the Supreme court’s decision in L. Chandra Kumar vs. Union of India and Ors. made it explicit that a party aggrieved by a decision of the Administrative Tribunal could approach the writ court but not directly. Further, by placing reliance on The State of West Bengal vs. Prabir Chakraborty, it was argued that the non-teaching employees of Malda Polytechnic must be paid on the same scale of pay and allowances as paid to the employees of the state in non-teaching posts in polytechnic colleges.

Findings of the court

The point that this court in the exercise of its writ jurisdiction should not entertain this matter and that it should have been filed before the State Administrative Tribunal was not raised at all till the stage of final hearing of the appeal. The court held that the argument that this court had no jurisdiction to hear the writ application was required to be backed by sufficient facts but was not so done. In this case this point was not even urged in the affidavit-in-opposition or at the time of hearing of the writ application. It was taken for the first time at the time of hearing of the appeal.

A division bench of this court in the Director of Technical Education and Training, Government of West Bengal vs. Chunilal Chakraborty and Ors. opined that the canteens operated by the technical department and other departments were identical in the type and quality of service rendered to the students. They were permanent employees rendering continuous service. Under those circumstances, the appeal was dismissed. The court observed that the facts of the instant case are similar to the division bench appeal in the case of Chunilal Chakraborty and Ors.

The court distinguished the facts of the present case from the facts in The State of West Bengal vs. Prabir Chakraborty where the canteen workers were held to be contractual workers.

The court held that considering the facts of the present case, non-teaching employees have to be treated and regularized as permanent employees of the Malda Polytechnic with a right to claim salary as an employee of the state.

With the aforesaid observations, the Division Bench dismissed the appeal.

Case No.

FMA 3477 of 2016 With CAN 7 of 2022

Case Name; The Director of Technical Education & Training Govt. of W.B. v Madan Mohan Sarkar & Ors.

Citation: 2023 LiveLaw (Cal) 123

Counsel for Appellant; Mr. Tapan Kumar Mukherjee, Mr. Pranab Halder, Ms. Tuli Sinha, Advs.

Counsel for Respondent 1: Mr. Kamalesh Bhattacharya, Mr. Arunava Banerjee

Sk. Qareeb, Ms. Mamata Dutta,Ms. Sudipa Mandi, Advs

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