Sk. Nazmul Haque And ORS. v. State Of West Bengal And ORS.

Form No.J(2)

IN THE HIGH COURT AT CALCUTTA

CONSTITUTIONAL WRIT JURISDICTION APPELLATE SIDE Present :

The Hon'ble Justice Raja Basu Chowdhury Sk Nazmul Haque & Ors.

Versus

The State of West Bengal & Ors.

For the petitioners :

Mr. Partha Sarathi Bhattacharya, Sr. Adv., Mr. Raju Bhattacharya, Md. Abdur Rakib, Mr. Majahid Mehedi, For the State Mr. Tapas Kumar Adhikari, Mr. Bishnupada Jana, For the Municipality :

Mr. Saikat Chatterjee Heard on :

21.04.2026 Judgment on :

21.04.2026 Raja Basu Chowdhury, J (Oral):

1. The instant writ petition has been filed, inter alia, praying for a direction upon the respondents to rescind, cancel and/or withdraw the Memoranda dated 4th December, 2024, 23rd May, 2023, 28th November, 2023 and 29th August, 2022 issued by the respondents and also for direction commanding the respondents to grant approval to the appointment of the petitioners to the post of Mazdoor.

2. The petitioners claim to have participated in the selection process initiated by the Suri Municipality for the post of Majzdoor in terms of the Government notification dated 26th September, 2019 issued by the Director of Local Bodies, West Bengal wherein seven (07) posts for Clerk and ten (10) posts for Mazdoor, in total 17 sanctioned vacant posts were required to be filled up by the Municipality in accordance with the provisions laid down in the West Bengal Municipal Employees‟ (Recruitment) Rules, 2005 (hereinafter referred to as "the said Rules") as amended and other relevant Government orders including roster for reservation.

The petitioners claim to have come across to the aforesaid recruitment process from the news paper publication notified by the Chairman Suri Municipality in a local daily being Employment Notice dated 8th February, 2020. According to the petitioners, the petitioner no. 1 stood first in the OBC-A category for the post of Mazdoor while the petitioner nos. 2, 3 & 5 succeeded in securing the second, third & fourth position respectively, for the post of Mazdoor in the unreserved category. Insofar as the petitioner no. 4 is concerned, he was also selected to the post of Mazdoor under Schedule Caste category as rank one and petitioner no. 6 was selected under unreserved ex-serviceman as rank one, for the post of Mazdoor.

Director of Local Bodies, Government of West Bengal for obtaining prior approval as per section 54(3) of the West Bengal Municipal Act, 1993 (hereinafter referred to as the "said Act of 1993")

3. Initially however, the petitioners were unaware with regard to the outcome of the selection process and, as such, the petitioners had approached this Court by filing a writ petition which was registered as WPA 26062 of 2022. By an order dated 13th November, 2024, a Co-ordinate Bench of this Court had disposed of such petition with a direction upon the concerned respondent to communicate the decision as regards the outcome of selection process to the petitioners.

4. Records would reveal that by an office Memo dated 4th December, 2024, the Director of Local Bodies and Ex-officio Special Commissioner, Department of UD & MA had intimated the petitioners that the recruitment process stood cancelled vide the G.O. dated 29th August, 2022 of the UD and MA Department, Government of West Bengal. To morefully appreciate the same the relevant communication is extracted hereinbelow:-

5. Mr. Bhattacharya, learned Senior advocate representing the petitioners challenging the aforesaid memorandum has drawn the attention of this Court to the Memorandum dated 29th August, 2022 issued by the Principal Secretary to the Government of West Bengal which has incidentally been highlighted in the letter dated 4th December, 2024, as the basis for cancellation of the selection process, and would submit that the aforesaid Governmental order dated 29th August, 2022 could not have interfered with the selection

process initiated by the respondents on the basis of the Governmental order dated 26th September, 2019. According to him, the West Bengal Municipal Service Commission Act, 2018 (hereinafter referred to as the "said Act") which was notified on 13th September, 2018 does not provide for selection of Mazdoors, the same is only confined to appointment of the categories of the staff of the Commission and for recruitment of the staff of Municipalities, ULBs, Municipal Corporation, Notified Area Authorities, Industrial Township as also establishment of different Organizations under Urban Development and Municipal Affairs Department, as may be prescribed.

The Government prescribed the categories of posts much later through the West Bengal Municipal Service Commission (Terms and conditions of service of the Chairman and other Members, appointment and the function) Rules, 2022 (hereinafter referred to as the "2022 Rules").

establishment of the Urban Local Bodies etc., for selection by the Commission, was yet to be prescribed. According to him the said letter dated 9th January, 2019, cannot interfere with the rights of either of the Government, or the Municipality to initiate and conclude the recruitment process which has been initiated prior to the said 2022 Rules being framed. Additionally, by referring to the order dated 3rd March, 2025 issued by the Special Secretary to the Government of West Bengal, whereby the Government having regard to the above order dated 2nd January, 2025 passed in WPA (P) 428 of 2024 had while reiterating its earlier communication dated 9th January, 2019 notified that all recruitment of personnel in the establishment of Urban Local Bodies etc. shall be made by the Commission was limited to category „A‟, category „B‟ and category „C‟ posts only and did not include category „D‟ posts.

6. Independent of the above, Mr. Bhattacharya has also relied on the Development Authority (Recruitment and Promotion) Rules, 2019 (hereinafter referred to as the "2019 Rules") which has been framed in exercise of the powers conferred under the West Bengal Town and Country (Planning and Development) Act, 1979, to highlight that the Group-D posts are a separate category of post which are required to be filled up by the Selection Committee, the constitution whereof, has been provided in Rule 5 of the said 2019 Rules. According to him there is no irregularity in the procedure adopted either by the Government or by the Municipality in recruiting the

petitioners. The petitioners having become successful on the basis of a recruitment process initiated by the Municipality at the instance of the State prior to the 2022 Rules being framed, cannot be denied the benefits thereof.

7. The Municipality is represented and supports the petitioners‟ cause. On the other hand, the learned advocate for the State by placing before this Court the communication dated 30th March, 2026 would submit that the petitioners are not entitled to the benefit of the recruitment notification dated 26th September, 2019 having regard to the Government notification dated 29th August, 2022. According to him though a limited exception was provided in respect of cases where approval for filling up of posts was granted from January, 2020 onwards as the recruitment process was delayed due to the pandemic, such exception cannot extend to the petitioners.

8. Having heard the learned advocates appearing for the respective parties, I find that in the instant case, the petitioners had been successful in a selection process initiated by the Municipality with the concurrence of the State. To morefully appreciate the above, the relevant sanction accorded by the Director of Local Bodies, West Bengal to the municipality for filling up the post vide order dated 26th September, 2019 is extracted hereinbelow:-

9. As would appear from the above, the posts identified in the aforesaid office memo were directed to be filled up in accordance with provisions laid down in the West Bengal Municipal Employees‟ (Recruitment) Rules 2005 and other relevant Government Orders including the rosters for reservation. The same also provide that prior approval of the Government should be obtained. Record would also reveal that a corrigendum was issued on 22nd October, 2019 correcting the number of posts to be filled up from 16 to 17 which appears to be correction of clerical mistake in the Memorandum dated 26th September, 2019.

10.

Pursuant to the above, the municipality appears to have issued the employment notice bearing no. 01/SM 2019-2020 dated 8th February, 2020. The petitioners participated in the said recruitment

process and the petitioners noted hereinabove had become successful. Since the outcome thereof was not intimated, the petitioners had approached this Court whereupon a Co-ordinate Bench of this Court by an order dated 13th November, 2024 in WPA 26062 of 2022 directed the concerned respondent to communicate the decision with regard to the selection process. It is in furtherance thereto that by Memorandum dated 4th December, 2024, the petitioners were informed that having regard to the office order dated 29th August, 2022 the recruitment process had been cancelled.

11.

The petitioners have now approached this Court challenging the aforesaid memorandum. Having regard to the disclosure already made it is necessary to test out as to whether the notification dated 29th August, 2022 in any way seeks to interfere with the recruitment process already initiated by the respondents vide notice dated 26th September, 2019. In this context, I find that by office order dated 29th August, 2022 by noting that the recruitment process in the Urban Local Bodies had got delayed due to diverse reasons against which approval for resuming of recruitment process had been sought, however, since the Finance Department had imposed austerity measure to combat Covid-19 pandemic, it followed that there shall be no recruitment unless approved by the Finance Department. Accordingly, for rational and optimal utilization of manpower certain guidelines were noted in

paragraphs (i) to (iv) of the letter. It was also provided that in case of non-compliance of such paragraphs, it was decided that in cessation of all ongoing/stalled recruitment process, which could not be completed, the State Government would consider filling up the post afresh by following the existing Government orders as noted therein. To morefully appreciate the same, the above letter is extracted hereinbelow:

12.

In this regard, it would be relevant to note that though the Office Memorandum dated 9th January, 2019 required all recruitment of personnel to be done though the West Bengal Municipal Service Commission, however, the rules in this regard were framed in exercise of powers conferred by Section 14 of the West Bengal Service Commission Act, 2018 and the same was notified only on 20th September, 2022, previously referred herein as the 2022 Rules. 13.

While Section 7 of the said Act confers a duty on the Commission to select person for direct recruitment to such categories of posts and services in the establishment of Urban Local Bodies etc, as may be prescribed, Rule 9 of the 2022 Rules elaborates on the manner in which the function of the Commission is required to be exercised for the prescribed posts. To morefully appreciate the same, the said Section 7 and Rule 9 are extracted hereinbelow: "7. Function of Commission. - (1) Notwithstanding anything contained in any other law for the time being in force and subject to the provisions of sub-section (3), it shall be the duty of the Commission to select persons for direct recruitment to such categories of posts and services in the establishments of Urban Local Bodies (Municipal Corporations, Municipalities, Notified Area Authorities, Industrial Township Authorities) and

also establishment of different Organizations under Urban Development and Municipal Affairs Department, as may be prescribed.

(2) It shall be the duty of the Commission to perform such other functions as the State Government may, by notification, specify and also advice the State Government on such matter as may be referred to it.

(3) Nothing in this section shall apply to direct recruitment to the posts or services which are- (a) required to be made through the Public Service Commission, West Bengal;

(b) filled up from the candidates belonging to the exempted categories which has been declared or is declared by the State Government by notification issued in exercise of the power conferred by section 3 of the West Bengal Regulation of Recruitment in State Government Establishments and Establishments of Public Undertaking, Statutory Bodies, Government Companies and Local Authorities Act, 1999 (West Ben. Act XIV of 1999), (c) excluded from the purview of this Act by the State Government by notification."

" 9. Functions of the Commission-

(1) It shall be the duty of the Commission to conduct, where necessary, examinations for appointment to the posts and services in the establishment of Urban Local Bodies (Municipal Corporation, Municipalities, Notified Area Authorities and Industrial Township Authorities), Development Authorities and also establishment of different organizations under Urban Development and Municipal Affairs Department, Government of West Bengal.

(2) The Commission may be consulted as and when necessary-

(a) On all matters relating to methods of recruitment to category A posts, category B posts and category C posts;

(b) On the principles to be followed in making appointments to category A posts, category B posts and category C posts;

And it shall be the duty of the Commission to advice on any matter so referred to it or on any other matter which the State Government may refer to it."

14.

From perusal of the above, it would appear that the Commission may be consulted as and when necessary on matters relating to method of recruitment to category „A‟ posts, category „B‟ posts and category „C‟ posts and the principle followed in making appointment to the category „A‟ and „B‟ posts are to be followed insofar as category „C‟ posts are concerned. I find that Section 7 of the said Act read with the above Rule makes it abundantly clear that though the said Act envisages a duty on the Commission to select persons for direct recruitment to such categories of posts and services in the establishment of the Urban Local Bodies etc., as may be prescribed by the 2022 Rules, which has been framed in exercise of powers conferred under Section 14 of the said Act, the State has in fact prescribed for the mode and manner of recruitment of category „A‟, category „B‟ and category „C‟ posts only. Till date, category „D‟ posts have not been prescribed under any of the rules framed by powers conferred under Section 14 of the said Act, for recruitment through the Commission.

15.

In this context, it would be relevant to note that the Government in exercise of powers conferred under Sub-section (1) read with clause (e) of Sub-section (2) of Section 138 of the West Bengal Town and Country (Planning and Development) Act, 1979 has been pleased to frame the rules relating to recruitment and conditions of appointment of employees of the development authorities under the Department of Urban Development Municipal Affairs (Town and Country Planning Branch), Government of West Bengal, known as the Development Authority (Recruitment and Promotion) Rules, 2019, previously referred herein as the 2019 Rules, which has been notified in the Kolkata Gazette on 2nd September, 2019 whereunder method of recruitment of not only Group „A‟, „B‟ and „C‟ category posts under the Development authorities but also the Group „D‟ posts have been provided for.

While for the Group „A‟, „B‟ and „C‟ category posts, the procedure for direct recruitment by the Commission constituted under the said Act has been followed, in terms of Rule 6 of the 2019 Rules, a specific procedure for recruitment of Group „D‟ staffs has been provided for. As per such rule, the selection committee, the constitution whereof is provided under Rule 5 of the 2019 Rules, has been authorised to deal with the direct recruitment of Group „D‟ posts.

recruitment of Group „D‟ posts shall be conducted by the selection committee of the concerned development authority as referred to in Rule 5 of the 2019 Rules. The aforesaid 2019 Rules having been introduced by the Government after the said Act having been enacted and given effect to, the same read with the authorisation given to the Commission to appoint Group „A‟, „B‟ and „C‟ category posts in terms of the 2022 Rules, makes it amply clear that the intent of the Government was to confer right of authority to the Commission for recruitment of Group „A‟, „B‟ and „C‟ category posts excluding category „D‟ posts therefrom. Though the said Act brings within its sweep the right to select persons for direct recruitment to the posts and services of the establishment of the Urban Local Bodies etc, however, at the same time the Government had reserved its right to prescribe such type of posts and services in the establishment, as it deemed fit.

16.

In the instant case, I find that the State Government has only prescribed the direct recruitment of „A‟, „B‟ and „C‟ category posts to be conducted by the Commission, leaving „D‟ category posts outside its purview. The Office Memorandum dated 9th January, 2019 is thus, restricted to recruitment of such personnel of the municipality or the establishment etc., as had been or would be prescribed in terms of the said Act, and the order passed by the Division Bench dated 2nd January, 2025 has to be read in consonance with the above. In any event, the direction contained in the order dated 2nd January, 2025 is only prospective.

17.

The Office Order dated 29th August, 2022, which takes note of the constitution of the Commission with effect from 2nd January, 2019, and the letter dated 9th January, 2019 could not have interfered, at least with the selection of Group „D‟ category posts. The aforesaid conferment of authority on the Commission to originally select „A‟, „B‟ and „C‟ category posts has further been amplified by the Government by its order dated 3rd March, 2025, leaving category „D‟ posts outside its purview; the same is extracted hereinbelow:-

18.

Thus, noting the prospective nature of the directions of the Hon‟ble Division Bench, and the Government themselves having initiated the recruitment process after enactment of the said Act, it is to be presumed that the Government was conscious of the position and had permitted the recruitment process to continue at that stage especially when the Government was yet to prescribe the categories of posts and services in the establishment of the Urban Local Bodies etc., which could come within the purview of the Commission for its selection under direct recruitment. 19.Accordingly, the office memo dated 4th December, 2024 appears to be arbitrary having been issued in complete non-application of mind. The same thus, stands set aside.

As a sequel thereto, the order dated 23rd May, 2023 issued by the Director of Local Bodies also stands set aside. The concerned Director of Local Bodies is directed to revisit the aforesaid issue in the light of the observations made herein and to pass necessary orders based on the Governmental Orders and/or Rules for recruitment of category „D‟ posts as was applicable at the time of initiating the recruitment process.

20.With the aforesaid process the WPA 830 of 2025 stands disposed of. Urgent photostat certified copy of this order, if applied for, be made available to the parties upon compliance with the requisite formalities. (Raja Basu Chowdhury, J.) S.M.

A.R. (Court)