OM PRAKASH BANERJEE versus THE STATE OF WEST BENGAL & ORS. on 19 May 2023

[2023] 10 S.C.R. 427 : 2023 INSC 567

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OM PRAKASH BANERJEE

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v.

THE STATE OF WEST BENGAL & ORS.

(Civil Appeal No. 4210 of 2023)

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MAY 19, 2023

[KRISHNA MURARI AND SANJAY KAROL, JJ.]

Service Law – Regularisation of service – Denial of – Held:Non-regularisation of the services of the appellant is a violation ofthe fundamental rights of equality before law and equality ofCopportunity in matters relating to employment under the State, asenshrined u/Articles 14 and 16(1) – The principles of natural justice,too, demand that the appellant cannot be denied the benefit of theregularisation of services when his similarly placed fellow employeeswere granted the said benefit – Appellant entitled to receive backwages and benefits from 1991 with 10% interest – Judgment of theDHigh Court set aside – Constitution of India – Articles 14, 16 –Principles of Natural Justice.

Secretary, State of Karnataka vs Umadevi (2006) 4 SCC1 : [2006] 3 SCR 953 – held inapplicable.

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UP SEB vs Pooran Chandra Pandey (2007) 11 SCC92 : [2007] 10 SCR 920 – relied on.

Surjeet Singh Sahni vs State of U.P. & Ors. 2022 SCCOnLine SC 249; Union of India v. Vartak Labour Union(2011) 4 SCC 200: [2011] 4 SCR 509 – referred to.

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Case Law Reference

CIVIL APPELLATE JURISDICTION : Civil Appeal No.4210of 2023.

From the Judgment and Order dated 10.12.2019 of the High Courtat Calcutta in CAN No.10038 of 2018 in MAT No.611 of 2018.

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ASurajdipta Seth, Ajit Sharma, Advs. for the Appellant.

Ms. Astha Sharma, Srisatya Mohanty, Sanjeev Kaushik, Ms.Mantika Haryani, Shreyas Awasthi, Himanshu Chakravarty, Ms. RipulSwati Kumari, Bhanu Mishra, Devvrat Singh, Ms. Muskan Surana,Sameer Kumar, Advs. for the Respondents.BThe Judgment of the Court was delivered by KRISHNA MURARI, J.

Leave granted.

2. The present appeal is directed against the judgment and finalCorder dated 10.12.2019 passed by the High Court of Judicature atCalcutta (hereinafter referred to as ‘High Court’) in MAT No. 611 of2018 and CAN No. 10038/2018filed by the Appellant herein against theorder dated 04.05.2018 passed by a Single Judge of the High Court inWrit Petition No. 31399 (W) of 2017, seeking regularisation of service.

3. The High Court dismissed MAT No. 611 of 2018 and CANDNo. 10038/2018 filed by the Appellant herein.

BRIEF FACTS:

4. The Appellant in the present case was a casual worker inRespondent No.3- Municipality, since 1991. The brief facts giving riseEto the present appeal are that on 18.04.1991, the Appellant herein wasappointed by Respondent No.3- Municipality as a casual worker @ Rs.25/- on a daily wage basis, to assist the Engineering Section of the MunicipalOffice. Prior to this, he had worked as an enumerator in the Census of1981 and 1991, respectively. On 14.06.1996, the Appellant was appointedfor 6 months on probation on a consolidated pay of Rs.1000/- per month.FOn 22.01.1997, Director of Local Bodies, West Bengal, issued a letter,wherein it was mentioned that as per order dated 13.03.1996, casualworkers who were engaged by different Urban Local Bodies up to31.12.1991 and were still continuing as such will be eligible for absorptionagainst sanctioned and vacant Group “C” and “D” categories of postGdepending upon their eligibility within the purview of approved staff patternof the respective Urban Local Bodies and as per the Board of theCouncillors, subject to the fulfilment of terms and conditions. However,such absorption never actually happened.

5. In 1999, the Appellant herein along with 16 other casual workersof Respondent No. 3- Municipality filed Writ Petition No. 19555 (W) ofH

OM PRAKASH BANERJEE v. THE STATE OF WEST BENGAL& ORS. [KRISHNA MURARI, J.]

1999 before the High Court, seeking a writ of mandamus directingRespondent No. 3- Municipality herein to regularise and/or absorb inpermanent vacancies in which they were discharging their duties ascasual workers. On 09.03.2000, an office order was issued by RespondentNo.- 3 Municipality stating that in pursuance of his satisfactoryperformance since last 3 years, he is being appointed in the post of Clerkin the dispatch section in the scale of Rs. 3350-6325/- plus usual admissibleallowances with retrospective effect from February, 2000. On 20.06.2000,the High Court dismissed the aforementioned Writ Petition No. 19555(W) of 1999. The relevant portion of the High Court’s order is beingreproduced hereunder :- “By the order dated 26th September, 1996 passed in C.O.No. 9662(W) of 1991, the respondent municipality was directedto consider the case of the writ petitioners for absorption inthe permanent vacancy. Pursuant to the said order, the caseof the petitioners were considered and they were ultimatelyabsorbed in permanent vacancies. Prior to such absorption,the petitioners were serving as casual workers. Upon suchabsorption, the petitioners have been granted the regularscale of pay with effect from the date of their permanentabsorption. Such permanent absorption was madeconsidering the service of the writ petitioners as casualworkers in the respondent municipality for a considerableperiod of time and therefore, such permanent absorption inthe regular vacancy did not relate to an appointment with aretrospective effect and as such the petitioners are not entitledto such a permanent and/or regular scale upon suchabsorption with a back date.

This writ petition does not submit any consideration. Hence,the case is dismissed.”

Following this, the Appellant wrote several letters and remindersto the Respondents for considering his eligibility and gradation list forabsorption under the exempted category to the sanctioned posts; but tono avail.

6. On 15.12.2003, 60 employees including 4 Writ Petitioners inthe aforementioned Writ Petition No. 19555 (W) of 1999, wereregularised. However, the Appellant’s service has not been regularised AB

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Atill date. On 08.03.2005, some 24 more employees were regularised inservice by Respondent No. 3- Municipality.

7. Since February, 2000, the Appellant was receiving a higher payscale and admissible allowances. But, from July, 2010, the allowancesand increments were stopped. Being aggrieved, the Appellant, alongBwith another employees, filed Writ Petition No. 17892 (W) of 2010 beforethe High Court. Vide Order dated 03.09.2010, the said Writ Petition wasdisposed of by directing Respondent No. 2 herein to pass a reasonedorder with regard to the question of approval of the petitioners in theMunicipality within 8 weeks.

C8. On 08.11.2010, a meeting of the Board of Councilors was held,wherein the agenda for approval of 76 employees was taken forconsideration. In spite of a specific direction of the High Court to pass areasoned order within 8 weeks, no such reasoned order wascommunicated to the Appellant. Being aggrieved, the Appellant filedWrit Petition No. 18281 (W) of 2011 before the High Court. Vide OrderDdated 09.01.2012, the said Writ Petition was disposed of by directingRespondent No. 2 herein to dispose of the matter regarding the filling upof vacant posts of clerks within 8 weeks. Accordingly, on 07.03.2012,Respondent No. 2 herein passed a reasoned order stating that the fillingup of vacant posts of clerk cannot be considered for absorption from theEgradation list of pre-1992 casual workers. Hence, the Appellant hereinwas denied absorption in regular service.

9. The Appellant states that till 2016, he made severalrepresentations for compliance of High Court’s aforementioned Orderdated 20.06.2000 passed in Writ Petition No. 19555 (W) of 1999, but toFno avail. It has been further stated that some similarly situated employeesfiled Writ Petition No. 25838 (W) of 2014 and Writ Petition No. 18863(W) of 2007 against Respondent No. 3- Municipality, and, pursuant tothe High Court’s orders in the said writ petitions, their services wereregularised by creating supernumerary post of pump operator. On05.04.2017, Joint Director of Local Bodies, Government of West BengalGwrote a letter to the Chairman of Respondent No. 3- Municipality fortaking necessary action upon the Appellant’s request for regularisation.However, no such action was taken in this regard.

10. Being aggrieved by the inaction of the Respondents, theAppellant herein filed another Writ Petition [being Writ Petition No. 31399

(W) of 2017] before the High Court. On 04.05.2018, the said Writ Petitionwas dismissed in view of the aforementioned reasoned Order dated07.03.2012 passed by Respondent No. 2. Being aggrieved by the dismissalof the Writ Petition, the Appellant filed an intra-court appeal (being MATNo. 611 of 2018) before a Division Bench of the High Court. During thependency of the said appeal, Respondent No. 3- Municipality issued aletter to Respondent No. 2 for granting approval of appointment of 23employees including the Appellant herein. Vide impugned Judgment andOrder dated 10.12.2019, the High Court dismissed the appeal filed bythe Appellant herein.

11. It is against this judgment of the High Court that the Appellanthas preferred the present Civil Appeal.

12. We have heard learned counsel for the parties.

SUBMISSIONS:

13. Mr. Surajdipta Seth, learned counsel appearing on behalf ofthe Appellant argued that the Appellant had been continuously writingletters in 2016 and 2017, and even after 15 years of litigation since 1996,after High Court’s directions regarding the Appellant’s absorption, theRespondents never absorbed the Appellant into regular service, eventhough his co-employees were. As such, the High Court ought to haveadopted a sympathetic approach towards the Appellant and should nothave dismissed his appeal on the technical ground of delay.

14. The learned counsel further argued that the Appellant is anex-census worker working continuously from 1981, i.e., before thecommencement of West Bengal Municipal Act. Vide G.O. dated19.03.1996, all those engaged prior to 31.12.1991 and still continuing inservice, became eligible for absorption, and so did the Appellant. Thelearned counsel also made a mention of G.O. dated 21.08.2002, whichplaces ex-census employees in the exempted category which is to bedirectly absorbed in permanent vacancy. Moreover, the G.O. dated28.06.2004 states that no approval of the Directorate of Local Bodies isrequired for appointments that fall under the purview of Local Bodies/Municipalities.

15. The learned counsel further contended that the Appellantthough qualifying all criteria, exemptions and despite the High Court’sdirections for absorption, he was sidelined while several other similarly AB

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Aplaced employees (including his juniors) were absorbed. The learnedcounsel brought our attention towards the High Court’s Order dated26.09.1996 in CO No. 9662 of 1991, directing the Appellant’s absorptionin permanent vacancy. Moreover, on 22.01.1997, the Respondentsdirected the regularisation of those engaged prior to 31.12.1991 and werestill continuing. However, such absorption of the Appellant neverBhappened in spite of the orders. The learned counsel also brought to ourattention the fact that the High Court’s Order dated 20.06.2000 passedin Writ Petition No. 19555 of 1999 clearly reflects that absorption hasbeen given effect to vide Order dated 26.09.1996 passed in theaforementioned CO No. 9662 of 1991. The High Court had dismissedCthe writ petition to the extent of entitlement of back dated appointmentand arrears. However, the Respondents never paid any heed to suchorder and inordinately delayed the Appellant’s appointment, whilesimultaneously absorbing other casual employees. The learned counselargued that when a particular set of employees is given relief by theCourt, all other similarly situated persons should be treated alike byDextending the same benefit. Not doing so would amount to discrimination,arbitrariness and would be in violation of Article 14 of the Constitution.The learned counsel also referred to several letters in this regard as wellas the Appellant’s service book which mentions that Respondent No. 3-Municipality has absorbed the Appellant in view of the High Court’sEOrder dated 20.06.2000 in Writ Petition No. 19555 (W) of 1999. Thelearned counsel also placed on record the memo of the Chairman ofRespondent No. 3- Municipality dated 15.09.2006, proposing theregularisation of 12 persons including the Appellant. The High Court inits Order dated 03.09.2010 passed in Writ Petition No. 17892 of 2010has also recorded submissions of the Respondents that resolutions forFthe Appellant’s absorption are already in place and the same have beensent for approval.

16. The learned counsel then argued that the High Court ought tohave looked that the facts of the present case are clearly distinguishablefrom the facts of Secretary, State of Karnataka vs Umadevi[1], since itGcannot be applied to a case where regularisation has been sought inpursuance of Article 14. In support of her argument, the learned counselrelied on this Court’s judgment in UP SEB vs Pooran Chandra Pandey[2],the facts of which are similar to the present case. In the said case, it 1 (2006) 4 SCC 1H2 (2007) 11 SCC 92

was held that the decision in Umadevi (supra) cannot be appliedmechanically without seeing the facts of a particular case, as a littledifference in facts can make Umadevi (supra) inapplicable. Lastly, thelearned counsel mentioned that the Appellant retired in 2021 (after aservice of 30 years) without any benefits.

17. Per contra, Ms. Astha Sharma, AOR, learned counsel appearingon behalf of Respondents No. 1 and 2 argued that the High Court hasrightly dismissed Writ Petition No. 31399 (W) of 2017, as the same wasfiled by the Appellant after an inordinate delay of 5 years, and therepresentations made by the Appellant do not constitute a sufficientground to condone the delay. In this regard, the learned counsel relied onthis Court’s judgment in Surjeet Singh Sahni vs State of U.P. & Ors.[3],wherein it has been held that representation does not extend the periodof limitation and the aggrieved person has to approach the courtexpeditiously and within reasonable time.

18. The learned counsel brought to our notice the High Court’sorder dated 24.08.2009, passed in Writ Petition ST No. 483 of 2009. Inthe said order, the High Court declared regularisation circulars dated13.08.1979, 28.08.1980 and 13.03.1996, respectively, as ultra vires tothe Constitution. Therefore, the said circulars have seized to exist in theeyes of law. The learned counsel also contended that the High Court inits order dated 20.06.2000 passed in Writ Petition No. 19555 (W) of1999, had rightly held that the absorption of permanent vacancies ofcasual workers would not be considered retrospectively and would onlyhave a prospective effect. She further contended that the Appellant failedto produce documents before the High Court to substantiate if the Orderdated 04.05.2018 passed in Writ Petition No. 31399 (W) of 2017 suffersfrom any perversity.

19. Learned counsel placed reliance on this Court’s judgment inUmadevi (supra) wherein it has been held that casual/temporary/adhoc appointees are not entitled to regularisation. The relevant portion ofthe said judgment is being reproduced hereunder:

“19. One aspect arises. Obviously, the State is also controlled byeconomic considerations and financial implications of any publicemployment. The viability of the department or the instrumentalityof the project is also of equal concern for the State. The State 3 2022 SCC OnLine SC 249

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Aworks out the scheme taking into consideration the financialimplications and the economic aspects. Can the court impose onthe State a financial burden of this nature by insisting onregularisation or permanence in employment, when those employedtemporarily are not needed permanently or regularly? As anexample, we can envisage a direction to give permanentBemployment to all those who are being temporarily or casuallyemployed in a public sector undertaking. The burden may becomeso heavy by such a direction that the undertaking itself may collapseunder its own weight. It is not as if this had not happened. So, thecourt ought not to impose a financial burden on the State by suchCdirections, as such directions may turn counterproductive.”

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The learned counsel also argued that the Appellant cannot claimthat he has been discriminated as against those who have been regularlyrecruited. She stated that it has been rightly held in Umadevi (supra)that there is no fundamental right in those who have been employed onDdaily wages or temporarily or on contractual basis, to claim that theyhave a right to be absorbed in service. Therefore, there is no violation ofArticles 14 and 16 in the matter.

20. Learned counsel also relied on this Court’s judgment in Unionof India v. Vartak Labour Union.[4 ]The relevant portion of the saidEjudgment is being reproduced hereunder:

“17. We are of the opinion that the respondent Union’s claim forregularisation of its members merely because they have beenworking for the BRO for a considerable period of time cannot begranted in light of several decisions of this Court, wherein it hasFbeen consistently held that casual employment terminates whenthe same is discontinued, and merely because a temporary orcasual worker has been engaged beyond the period of hisemployment, he would not be entitled to be absorbed in regularservice or made permanent, if the original appointment was not interms of the process envisaged by the relevant rules.”GANALYSIS:

21. We have carefully considered the rival contentions advancedat the Bar.

4 (2011) 4 SCC 200H

22. At the outset, we would like to state that this a case of grossviolation of Article 14 and 16 of the Constitution. The Appellant, whohas been working in Respondent No. 3- Municipality since 1991, andwas, subsequently, appointed as a clerk in 1996; has not been regularisedin his service. Moreover, his several of his co-employees (includingjuniors) have been regularised in service. The High Court’s Order dated20.06.2000 in Writ Petition No. 19555 of 1999 clearly shows thatabsorption has been given effect to vide Order dated 26.09.1996. Thesaid writ petition was dismissed to the extent of entitlement of backdated appointment and arrears. However, the Respondents never paidany heed to such order and inordinately delayed the Appellant’sappointment, while simultaneously absorbing other casual employees.Even the Appellant’s service book records that Respondent No. 3-Municipality has absorbed the Appellant in view of the High Court’sOrder dated 20.06.2000 in Writ Petition No. 19555 (W) of 1999.

23. The Respondent has relied on Umadevi (supra) judgment tocontend that there is no fundamental right in those who have beenemployed on daily wages or temporarily or on contractual basis, to claimthat they have a right to be absorbed in service. The relevant portion ofthe factual position in Umadevi (supra) is being reproduced as hereunder:

“8. ….the respondents therein who were temporarily engagedon daily wages in the Commercial Taxes Department in someof the districts of the State of Karnataka claim that they workedin the Department based on such engagement for more than10 years and hence they are entitled to be made permanentemployees of the Department, entitled to all the benefits ofregular employees. They were engaged for the first time inthe years 1985-86 and in the teeth of orders not to make suchappointments issued on 3-7-1984. Though the Director ofCommercial Taxes recommended that they be absorbed, theGovernment did not accede to that recommendation. Theserespondents thereupon approached the AdministrativeTribunal in the year 1997 with their claim. The AdministrativeTribunal rejected their claim finding that they had not madeout a right either to get wages equal to that of others regularlyemployed or for regularisation. Thus, the applications filedwere dismissed. The respondents approached the High Courtof Karnataka challenging the decision of the Administrative AB

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ATribunal. It is seen that the High Court without really comingto grips with the question falling for decision in the light ofthe findings of the Administrative Tribunal and the decisionsof this Court, proceeded to order that they are entitled to wagesequal to the salary and allowances that are being paid to theregular employees of their cadre in government service withBeffect from the dates from which they were respectivelyappointed. It may be noted that this gave retrospective effectto the judgment of the High Court by more than 12 years. TheHigh Court also issued a command to the State to considertheir cases for regularisation within a period of four monthsCfrom the date of receipt of that order. The High Court seemsto have proceeded on the basis that, whether they wereappointed before 1-7-1984, a situation covered by the decisionof this Court in Dharwad District PWD Literate Daily WageEmployees Assn. v. State of Karnataka [(1990) 2 SCC 396 :1990 SCC (L&S) 274 : (1990) 12 ATC 902 : (1990) 1 SCRD544] and the scheme framed pursuant to the directionthereunder, or subsequently, since they have worked for aperiod of 10 years, they were entitled to equal pay for equalwork from the very inception of their engagement on dailywages and were also entitled to be considered forEregularisation in their posts.”

24. However, in the present case, as we have observed, theAppellant was appointed as a casual worker in 1991. While the servicesof other co-employees were regularised, that of the Appellant and someothers was left out. The High Court in its Order dated 03.09.2010 passedFin Writ Petition No. 17892 of 2010 has also recorded the Respondents’submissions that resolutions pertaining to the Appellant’s absorption arealready in place and the same have been sent for necessary approval.Therefore, the judgment rendered in Umadevi (supra) will not apply tothe facts and circumstances of the present case.

G25. Now, coming to the Reasoned Order dated 07.03.2012 passedby Respondent No. 2 herein, which states that in pursuance of the HighCourt’s order dated 24.08.2009 to not to give effect to the instruction ofthe Labour Department (pertaining to regularisation of casual employees)as communicated in the circulars dated 13.08.1979, 28.08.1980 and13.03.1996; the Appellant’s services cannot be regularised. However,H

what is to be seen here is that, as early as 2002, i.e., the High Court’sOrder dated 20.06.2000 in Writ Petition No. 19555 of 1999 clearly showsthat absorption has been given effect to vide Order dated 26.09.1996.Moreover, as has been observed above, the Respondents had alsosubmitted before the High Court in Writ Petition No. 17892 of 2010 thatresolutions pertaining to the Appellant’s absorption are already in placeand the same have been sent for necessary approval. Apart from this,as is evident from the facts and circumstances mentioned above, thenon-regularisation of the services of the Appellant in the present case,is, in our view, a violation of the fundamental rights of equality beforelaw and equality of opportunity in matters relating to employment underthe State, as enshrined under Article 14 and Article 16(1) of theConstitution, respectively. It is to be noted that the Appellant has retiredin 2021.

26. The facts of U.P. SEB (supra) are similar to the case athand. The relevant portion of the said judgment is being reproducedhereunder:

“3. By means of the writ petition, 34 petitioners who weredaily wage employees of the Cooperative Electric SupplySociety (hereinafter referred to as “the Society”) had prayedfor regularisation of their services in the U.P. State ElectricityBoard (hereinafter referred to as “the Electricity Board”). Itappears that the Society had been taken over by the ElectricityBoard on 3-4-1997. A copy of the minutes of the proceedingdated 3-4-1997 is Annexure P-2 to this appeal. Thatproceeding was presided over by the Minister of Cooperatives,U.P. Government and there were a large number of seniorofficers of the State Government present in the proceeding.In the said proceeding, it was mentioned that the daily wageemployees of the Society who are being taken over by theBoard will start working in the Electricity Board “in the samemanner and position”.

4. Pursuant to the said proceeding, the respondents hereinwere absorbed in the service of the Electricity Board.

5. Earlier, the Electricity Board had taken a decision on 28-11-1996 to regularise the services of its employees workingon daily-wage basis from before 4-5-1990 on the existing AB

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vacant posts and that an examination for selection would beheld for that purpose.

6. The contention of the writ petitioners (the respondentsherein) was that since the Society had been taken over by theElectricity Board, the decision dated 28-11-1996 taken bythe Electricity Board with regard to its daily wage employeeswill also be applicable to the employees of the Society whowere working from before 4-5-1990 and whose services stoodtransferred to the Electricity Board and who were workingwith the Electricity Board on daily-wage basis.

7. The learned Single Judge in his judgment dated 21-9-1998held that there was no ground for discriminating between twosets of employees who are daily wagers, namely, (i) theoriginal employees of the Electricity Board, and (ii) theemployees of the Society, who subsequently became theemployees of the Electricity Board when the Society was takenover by the Electricity Board. This view of the learned SingleJudge was upheld by the Division Bench of the High Court.

8. We are in agreement with the view taken by the DivisionBench and the learned Single Judge.

9. The writ petitioners who were daily wagers in the serviceof the Society were appointed in the Society before 4-5-1990and their services were taken over by the Electricity Board“in the same manner and position”. In our opinion, this wouldmean that their services in the Society cannot be ignored forconsidering them for the benefit of the order dated 28-11-1996.

……..

19. In the present case many of the writ petitioners have beenworking from 1985 i.e. they have put in about 22 years’service and it will surely not be reasonable if their claim forregularisation is denied even after such a long period ofservice. Hence apart from discrimination, Article 14 of theConstitution will also be violated on the ground ofarbitrariness and unreasonableness if employees who haveput in such a long service are denied the benefit of regularisation and are made to face the same selection whichfresh recruits have to face.”

27. The principles of natural justice, too, demand that the Appellantcannot be denied the benefit of the regularisation of services when hissimilarly placed fellow employees have been granted the said benefit.

28. Therefore, we do not agree with the view taken in the impugnedjudgment of the High Court as well as by the learned Single Judge inWrit Petition No. 31399 (W) of 2017. The Appellant herein, in ourconsidered opinion, is entitled to receive back wages and benefits from1991, along with an interest of 10%.

29. Accordingly, the Appeal is allowed. The impugned judgmentof the High Court dated 10.12.2019, passed in MAT No. 611 of 2018and CAN No. 10038/2018 is hereby set aside. However, in the factsand circumstances of the case, we do not make any order as to costs.

Divya Pandey

Appeal allowed.

(Assisted by : Roopanshi Virang, LCRA)

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