JUDGMENT
Dilip Kumar Seth, J.
1. The petitioner is alleged to have been engaged as Sahayak in the Panchayat sometime in 1981 and had been continuing as such. It is contended by the counsel for the respondents that the petitioner was engaged as a casual labour, while the petitioner’s counsel contends that he had worked in different capacity for all these long years. Be that as it may, it is not in dispute that the petitioner had been working since 1981. In the meantime, the West Bengal Regulation of Recruitment in State Government Establishment Act, 1999 has come into effect. At the same time, the Recruitment Rules relating to appointment of Sahayak in the Gram Panchayat and certain conditions of services therefor were also promulgated by the State Government on December 4, 1998 which is Annexure-5 to the petition. While the counsel for the petitioner prays that the petitioner should be given an opportunity to appear in the selection under the said rules for being permanently absorbed or appointed in the post of Sahayak relaxing requirements provided under the said rules, the learned counsel for the respondents, on the other hand, contends that no appointment should to be given de hors the recruitment rules as has been held in the Single Bench decision in the case of Debasis Dutta v. State of West Bengal, 1998 (2) CLJ 1.
2. Heard both the learned counsels for the parties at length.
3. If the petitioner had worked for these long years in that event for the purpose of engagement his case is to be considered along with other eligible candidates since no one can be permitted to employ a person in derogation of Article 23 of the Constitution of India. Obtaining work without paying equal pay for equal work is an exploitation which is otherwise prohibited by reason of the provisions contained in the Constitution. Then again the petitioner had been working since 1981 and his case for absorption had arisen long before the scheme or rules were promulgated on December 4, 1998 or when 1999 Act was enacted. The petitioner’s right cannot be taken away by reason of subsequent enactment when he had otherwise been eligible or been so absorbed in the absence of any recruitment rules. In such circumstances, the petitioner’s eligibility cannot be denied on the ground that he does not satisfy the conditions laid down either in the said rules or in the Act as propounded by the counsel for the respondent.
4. In such circumstances, the petitioner’s candidature should be considered along with other eligible candidates relaxing the age as well as the question of sponsoring his name through Employment Exchange and all other conditions, on which he is otherwise eligible, having regard to the fact that he had been working for these long years. In case upon consideration if all other conditions and situations are equal, in that event the petitioner shall be entitled to preference on account of his long service.
5. In that view of the matter, this writ petition is disposed of by directing the respondents to consider the petitioner’s case while making selection in the post of Sahayak in the light of the observations made above. The petition is thus disposed of without any order as to costs.
6. The Single Bench decision no doubt lays down that there cannot be any recruitment de hors the recruitment rules. But, when special circumstances arise as has been available in the facts and circumstances of the present case where the right to absorb had arisen before the recruitment rules were framed the said decision cannot stand in the way.
