OM PRAKASH BANERJEE versus THE STATE OF WEST BENGAL & ORS.
[2023] 10 S.C.R. 427, Supreme Court of India, 2023
Outcome: Appeal(s) allowed (Granted)
Segment: Ratio
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[2023] 10 S.C.R. 427 : 2023 INSC 567
427
OM PRAKASH BANERJEE
v.
THE STATE OF WEST BENGAL & ORS.
(Civil Appeal No. 4210 of 2023)
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 of
the fundamental rights of equality before law and equality of
opportunity in matters relating to employment under the State, as
enshrined u/Articles 14 and 16(1) – The principles of natural justice,
too, demand that the appellant cannot be denied the benefit of the
regularisation of services when his similarly placed fellow employees
were granted the said benefit – Appellant entitled to receive back
wages and benefits from 1991 with 10% interest – Judgment of the
High Court set aside – Constitution of India – Articles 14, 16 –
Principles of Natural Justice.
Secretary, State of Karnataka vs Umadevi (2006) 4 SCC
1 : [2006] 3 SCR 953 – held inapplicable.
UP SEB vs Pooran Chandra Pandey (2007) 11 SCC
92 : [2007] 10 SCR 920 – relied on.
Surjeet Singh Sahni vs State of U.P. & Ors. 2022 SCC
OnLine SC 249; Union of India v. Vartak Labour Union
(2011) 4 SCC 200: [2011] 4 SCR 509 – referred to.
Case Law Reference
[2006] 3 SCR 953
held inapplicable
Para 16
[2007] 10 SCR 920
relied on
Para 16
[2011] 4 SCR 509
referred to
Para 20
CIVIL APPELLATE JURISDICTION : Civil Appeal No.4210
of 2023.
From the Judgment and Order dated 10.12.2019 of the High Court
at Calcutta
in CAN No.10038 of 2018 in MAT No.611 of 2018.
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Surajdipta Seth, Ajit Sharma, Advs. for the Appellant.
Ms. Astha Sharma, Srisatya Mohanty, Sanjeev Kaushik, Ms.
Mantika Haryani, Shreyas Awasthi, Himanshu Chakravarty, Ms. Ripul
Swati Kumari, Bhanu Mishra, Devvrat Singh, Ms. Muskan Surana,
Sameer Kumar, Advs. for the Respondents.
The Judgment of the Court was delivered by
KRISHNA MURARI, J.
Leave granted.
2. The present appeal is directed against the judgment and final
order dated 10.12.2019 passed by the High Court of Judicature at
Calcutta (hereinafter referred to as ‘High Court’) in MAT No. 611 of
2018 and CAN No. 10038/2018filed by the Appellant herein against the
order dated 04.05.2018 passed by a Single Judge of the High Court in
Writ Petition No. 31399 (W) of 2017, seeking regularisation of service.
3. The High Court dismissed MAT No. 611 of 2018 and CAN
No. 10038/2018 filed by the Appellant herein.
BRIEF FACTS:
4. The Appellant in the present case was a casual worker in
Respondent No.3- Municipality, since 1991. The brief facts giving rise
to the present appeal are that on 18.04.1991, the Appellant herein was
appointed by Respondent No.3- Municipality as a casual worker @ Rs.25/
- on a daily wage basis, to assist the Engineering Section of the Municipal
Office. Prior to this, he had worked as an enumerator in the Census of
1981 and 1991, respectively. On 14.06.1996, the Appellant was appointed
for 6 months on probation on a consolidated pay of Rs.1000/- per
month.
On 22.01.1997, Director of Local Bodies, West Bengal, issued a letter,
wherein it was mentioned that as per order dated 13.03.1996, casual
workers who were engaged by different Urban Local Bodies up to
31.12.1991 and were still continuing as such will be eligible for absorption
against sanctioned and vacant Group “C” and “D” categories of post
depending upon their eligibility within the purview of approved staff pattern
of the respective Urban Local Bodies and as per the Board of the
Councillors, 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 workers
of Respondent No. 3- Municipality filed Writ Petition No. 19555 (W) of
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1999 before the High Court, seeking a writ of mandamus directing
Respondent No. 3- Municipality herein to regularise and/or absorb in
permanent vacancies in which they were discharging their duties as
casual workers. On 09.03.2000, an office order was issued by Respondent
No.- 3 Municipality stating that in pursuance of his satisfactory
performance since last 3 years, he is being appointed in the post of Clerk
in the dispatch section in the scale of Rs. 3350-6325/- plus usual admissible
allowances 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 being
reproduced hereunder :-
“By the order dated 26th September, 1996 passed in C.O.
No. 9662(W) of 1991, the respondent municipality was directed
to consider the case of the writ petitioners for absorption in
the permanent vacancy. Pursuant to the said order, the case
of the petitioners were considered and they were ultimately
absorbed in permanent vacancies. Prior to such absorption,
the petitioners were serving as casual workers. Upon such
absorption, the petitioners have been granted the regular
scale of pay with effect from the date of their permanent
absorption. Such permanent absorption was made
considering the service of the writ petitioners as casual
workers in the respondent municipality for a considerable
period of time and therefore, such permanent absorption
in
the regular vacancy did not relate to an appointment with a
retrospective effect and as such the petitioners are not entitled
to such a permanent and/or regular scale upon such
absorption 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 reminders
to the Respondents for considering his eligibility and gradation list for
absorption under the exempted category to the sanctioned posts; but to
no avail.
6. On 15.12.2003, 60 employees including 4 Writ Petitioners in
the aforementioned Writ Petition No. 19555 (W) of 1999, were
regularised. However, the Appellant’s service has not been regularised
OM PRAKASH BANERJEE v. THE STATE OF WEST BENGAL
& ORS. [KRISHNA MURARI, J.]
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till date. On 08.03.2005, some 24 more employees were regularised in
service by Respondent No. 3- Municipality.
7. Since February, 2000, the Appellant was receiving a higher pay
scale and admissible allowances. But, from July, 2010, the allowances
and increments were stopped. Being aggrieved, the Appellant, along
with another employees, filed Writ Petition No. 17892 (W) of 2010 before
the High Court. Vide Order dated 03.09.2010, the said Writ Petition was
disposed of by directing Respondent No. 2 herein to pass a reasoned
order with regard to the question of approval of the petitioners in the
Municipality within 8 weeks.
8. On 08.11.2010, a meeting of the Board of Councilors was held,
wherein the agenda for approval of 76 employees was taken for
consideration. In spite of a specific direction of the High Court to pass a
reasoned order within 8 weeks, no such reasoned order was
communicated to the Appellant. Being aggrieved, the Appellant filed
Writ Petition No. 18281 (W) of 2011 before the High Court. Vide Order
dated 09.01.2012, the said Writ Petition was disposed of by directing
Respondent No. 2 herein to dispose of the matter regarding the filling up
of vacant posts of clerks within 8 weeks. Accordingly, on 07.03.2012,
Respondent No. 2 herein passed a reasoned order stating that the filling
up of vacant posts of clerk cannot be considered for absorption from the
gradation list of pre-1992 casual workers. Hence,
the Appellant herein
was denied absorption in regular service.
9. The Appellant states that till 2016, he made several
representations for compliance of High Court’s aforementioned Order
dated 20.06.2000 passed in Writ Petition No. 19555 (W) of 1999, but to
no avail. It has been further stated that some similarly situated employees
filed Writ Petition No. 25838 (W) of 2014 and Writ Petition No. 18863
(W) of 2007 against Respondent No. 3- Municipality, and, pursuant to
the High Court’s orders in the said writ petitions, their services were
regularised by creating supernumerary post of pump operator. On
05.04.2017, Joint Director of Local Bodies, Government of West Bengal
wrote a letter to the Chairman of Respondent No. 3- Municipality for
taking 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, the
Appellant herein filed another Writ Petition [being Writ Petition No. 31399
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(W) of 2017] before the High Court. On 04.05.2018, the said Writ Petition
was dismissed in view of the aforementioned reasoned Order dated
07.03.2012 passed by Respondent No. 2. Being aggrieved by the dismissal
of the Writ Petition, the Appellant filed an intra-court appeal (being MAT
No. 611 of 2018) before a Division Bench of the High Court. During the
pendency of the said appeal, Respondent No. 3- Municipality issued a
letter to Respondent No. 2 for granting approval of appointment of 23
employees including the Appellant herein. Vide impugned Judgment and
Order dated 10.12.2019, the High Court dismissed the appeal filed by
the Appellant herein.
11. It is against this judgment of the High Court that the Appellant
has preferred the present Civil Appeal.
12. We have heard learned counsel for the parties.
SUBMISSIONS:
13. Mr. Surajdipta Seth, learned counsel appearing on behalf of
the Appellant argued that the Appellant had been continuously writing
letters in 2016 and 2017, and even after 15 years of litigation since 1996,
after High Court’s directions regarding the Appellant’s absorption, the
Respondents never absorbed the Appellant into regular service, even
though his co-employees were. As such, the High Court ought to have
adopted a sympathetic approach towards the Appellant and should not
have dismissed his appeal on the technical ground of delay.
14. The learned counsel further argued that the Appellant is an
ex-census worker working continuously
from 1981, i.e., before the
commencement of West Bengal Municipal Act. Vide G.O. dated
19.03.1996, all those engaged prior to 31.12.1991 and still continuing in
service, became eligible for absorption, and so did the Appellant. The
learned counsel also made a mention of G.O. dated 21.08.2002, which
places ex-census employees in the exempted category which is to be
directly absorbed in permanent vacancy. Moreover, the G.O. dated
28.06.2004 states that no approval of the Directorate of Local Bodies is
required for appointments that fall under the purview of Local Bodies/
Municipalities.
15. The learned counsel further contended that the Appellant
though qualifying all criteria, exemptions and despite the High Court’s
directions for absorption, he was sidelined while several other similarly
OM PRAKASH BANERJEE v. THE STATE OF WEST BENGAL
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placed employees (including his juniors) were absorbed. The learned
counsel brought our attention towards the High Court’s Order dated
26.09.1996 in CO No. 9662 of 1991, directing the Appellant’s absorption
in permanent vacancy. Moreover, on 22.01.1997, the Respondents
directed the regularisation of those engaged prior to 31.12.1991 and were
still continuing. However, such absorption of the Appellant never
happened in spite of the orders. The learned counsel also brought to our
attention the fact that the High Court’s Order dated 20.06.2000 passed
in Writ Petition No. 19555 of 1999 clearly reflects that absorption has
been given effect to vide Order dated 26.09.1996 passed in the
aforementioned CO No. 9662 of 1991. The High Court had dismissed
the writ petition to the extent of entitlement of back dated appointment
and arrears. However, the Respondents never paid any heed to such
order and inordinately delayed the Appellant’s appointment, while
simultaneously absorbing other casual employees. The learned counsel
argued that when a particular set of employees is given relief by the
Court, all other similarly situated persons should be treated alike by
extending 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 well
as the Appellant’s service book which mentions
that Respondent No. 3-
Municipality has absorbed the Appellant in view of the High Court’s
Order dated 20.06.2000 in Writ Petition No. 19555 (W) of 1999. The
learned counsel also placed on record the memo of the Chairman of
Respondent No. 3- Municipality dated 15.09.2006, proposing the
regularisation of 12 persons including the Appellant. The High Court in
its Order dated 03.09.2010 passed in Writ Petition No. 17892 of 2010
has also recorded submissions of the Respondents that resolutions for
the Appellant’s absorption are already in place and the same have been
sent for approval.
16. The learned counsel then argued that the High Court ought to
have looked that the facts of the present case are clearly distinguishable
from the facts of Secretary, State of Karnataka vs Umadevi1, since it
cannot be applied to a case where regularisation has been sought in
pursuance of Article 14. In support of her argument, the learned counsel
relied on this Court’s judgment in UP SEB vs Pooran Chandra Pandey2,
the facts of which are similar to the present case. In the said case, it
1 (2006) 4 SCC 1
2 (2007) 11 SCC 92
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was held that the decision in Umadevi (supra) cannot be applied
mechanically without seeing the facts of a particular case, as a little
difference in facts can make Umadevi (supra) inapplicable. Lastly, the
learned counsel mentioned that the Appellant retired in 2021 (after a
service of 30 years) without any benefits.
17. Per contra, Ms. Astha Sharma, AOR, learned counsel appearing
on behalf of Respondents No. 1 and 2 argued that the High Court has
rightly dismissed Writ Petition No. 31399 (W) of 2017, as the same was
filed by the Appellant after an inordinate delay of 5 years, and the
representations made by the Appellant do not constitute a sufficient
ground to condone the delay. In this regard, the learned counsel relied on
this 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 period
of limitation and the aggrieved person has to approach the court
expeditiously and within reasonable time.
18. The learned counsel brought to our notice the High Court’s
order dated 24.08.2009, passed in Writ Petition ST No. 483 of 2009. In
the said order, the High Court declared regularisation circulars dated
13.08.1979, 28.08.1980 and 13.03.1996, respectively, as ultra vires to
the Constitution. Therefore, the said circulars have seized to exist in the
eyes of law. The learned counsel also contended that the High Court in
its order dated 20.06.2000 passed in Writ Petition No. 19555 (W) of
1999, had rightly held that the absorption of permanent vacancies of
casual workers would not be considered retrospectively and would only
have a prospective effect. She further contended that the Appellant failed
to produce documents before the High Court to substantiate if the Order
dated 04.05.2018 passed in Writ Petition No. 31399 (W) of 2017 suffers
from any perversity.
19. Learned counsel placed reliance on this Court’s judgment in
Umadevi (supra) wherein it has been held that casual/temporary/ad
hoc appointees are not entitled to regularisation. The relevant portion of
the said judgment is being reproduced hereunder:
“19. One aspect arises. Obviously, the State is also controlled by
economic considerations and financial implications of any public
employment. The viability of the department or the instrumentality
of the project is also of equal concern for the State. The State
3 2022 SCC OnLine SC 249
OM PRAKASH BANERJEE v. THE STATE OF WEST BENGAL
& ORS. [KRISHNA MURARI, J.]
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works out the scheme taking into consideration the financial
implications and the economic aspects. Can the court impose on
the State a financial burden of this nature by insisting on
regularisation or permanence in employment, when those employed
temporarily are not needed permanently or regularly? As an
example, we can envisage a direction to give permanent
employment to all those who are being temporarily or casually
employed in a public sector undertaking. The burden may become
so heavy by such a direction that the undertaking itself may collapse
under its own weight. It is not as if this had not happened. So, the
court ought not to impose a financial burden on the State by such
directions, as such directions may turn counterproductive.”
The learned counsel also argued that the Appellant cannot claim
that he has been discriminated as against those who have been regularly
recruited. She stated that it has been rightly held in Umadevi (supra)
that there is no fundamental right in those who have been employed on
daily wages or temporarily or on contractual basis, to claim that they
have a right to be absorbed in service. Therefore, there is no violation of
Articles 14 and 16 in the matter.
20. Learned counsel also relied on this Court’s judgment in Union
of India v. Vartak Labour Union.4 The relevant portion of the said
judgment is being reproduced hereunder:
“17. We are of the opinion that the respondent Union’s
claim for
regularisation of its members merely because they have been
working for the BRO for a considerable period of time cannot be
granted in light of several decisions of this Court, wherein it has
been consistently held that casual employment terminates when
the same is discontinued, and merely because a temporary or
casual worker has been engaged beyond the period of his
employment, he would not be entitled to be absorbed in regular
service or made permanent, if the original appointment was not in
terms of the process envisaged by the relevant rules.”
ANALYSIS:
21. We have carefully considered the rival contentions advanced
at the Bar.
4 (2011) 4 SCC 200
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22. At the outset, we would like to state that this a case of gross
violation of Article 14 and 16 of the Constitution. The Appellant, who
has been working in Respondent No. 3- Municipality since 1991, and
was, subsequently, appointed as a clerk in 1996; has not been regularised
in his service. Moreover, his several of his co-employees (including
juniors) have been regularised in service. The High Court’s Order dated
20.06.2000 in Writ Petition No. 19555 of 1999 clearly shows that
absorption has been given effect to vide Order dated 26.09.1996. The
said writ petition was dismissed to the extent of entitlement of back
dated appointment and arrears. However, the Respondents never paid
any heed to such order and inordinately delayed the Appellant’s
appointment, 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’s
Order dated 20.06.2000 in Writ Petition No. 19555 (W) of 1999.
23. The Respondent has relied on Umadevi (supra) judgment to
contend that there is no fundamental right in those who have been
employed on daily wages or temporarily or on contractual basis, to claim
that they have a right to be absorbed in service. The relevant portion of
the factual position in Umadevi (supra) is being reproduced as hereunder:
“8. ….the respondents therein who were temporarily engaged
on daily wages in the Commercial Taxes Department in
some
of the districts of the State of Karnataka claim that they worked
in the Department based on such engagement for more than
10 years and hence they are entitled to be made permanent
employees of the Department, entitled to all the benefits of
regular employees. They were engaged for the first time in
the years 1985-86 and in the teeth of orders not to make such
appointments issued on 3-7-1984. Though the Director of
Commercial Taxes recommended that they be absorbed, the
Government did not accede to that recommendation. These
respondents thereupon approached the Administrative
Tribunal in the year 1997 with their claim. The Administrative
Tribunal rejected their claim finding that they had not made
out a right either to get wages equal to that of others regularly
employed or for regularisation. Thus, the applications filed
were dismissed. The respondents approached the High Court
of Karnataka challenging the decision of the Administrative
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& ORS. [KRISHNA MURARI, J.]
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Tribunal. It is seen that the High Court without really coming
to grips with the question falling for decision in the light of
the findings of the Administrative Tribunal and the decisions
of this Court, proceeded to order that they are entitled to wages
equal to the salary and allowances that are being paid to the
regular employees of their cadre in government service with
effect from the dates from which they were respectively
appointed. It may be noted that this gave retrospective effect
to the judgment of the High Court by more than 12 years. The
High Court also issued a command to the State to consider
their cases for regularisation within a period of four months
from the date of receipt of that order. The High Court seems
to have proceeded on the basis that, whether they were
appointed before 1-7-1984, a situation covered by the decision
of this Court in Dharwad District PWD Literate Daily Wage
Employees Assn. v. State of Karnataka [(1990) 2 SCC 396 :
1990 SCC (L&S) 274 : (1990) 12 ATC 902 : (1990) 1 SCR
544] and the scheme framed pursuant to the direction
thereunder, or subsequently, since they have worked for a
period of 10 years, they were entitled to equal pay for equal
work from the very inception of their engagement on daily
wages and were also entitled to be considered for
regularisation in their posts.”
24. However, in the present case, as we have observed, the
Appellant was appointed as a casual worker
in 1991. While the services
of other co-employees were regularised, that of the Appellant and some
others was left out. The High Court in its Order dated 03.09.2010 passed
in Writ Petition No. 17892 of 2010 has also recorded the Respondents’
submissions that resolutions pertaining to the Appellant’s absorption are
already in place and the same have been sent for necessary approval.
Therefore, the judgment rendered in Umadevi (supra) will not apply to
the facts and circumstances of the present case.
25. Now, coming to the Reasoned Order dated 07.03.2012 passed
by Respondent No. 2 herein, which states that in pursuance of the High
Court’s order dated 24.08.2009 to not to give effect to the instruction of
the Labour Department (pertaining to regularisation of casual employees)
as communicated in the circulars dated 13.08.1979, 28.08.1980 and
13.03.1996; the Appellant’s services cannot be regularised. However,
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what is to be seen here is that, as early as 2002, i.e., the High Court’s
Order dated 20.06.2000 in Writ Petition No. 19555 of 1999 clearly shows
that absorption has been given effect to vide Order dated 26.09.1996.
Moreover, as has been observed above, the Respondents had also
submitted before the High Court in Writ Petition No. 17892 of 2010 that
resolutions pertaining to the Appellant’s absorption are already in place
and the same have been sent for necessary approval. Apart from this,
as is evident from the facts and circumstances mentioned above, the
non-regularisation of the services of the Appellant in the present case,
is, in our view, a violation of the fundamental rights of equality before
law and equality of opportunity in matters relating to employment under
the State, as enshrined under Article 14 and Article 16(1) of the
Constitution, respectively. It is to be noted that the Appellant has retired
in 2021.
26. The facts of U.P. SEB (supra) are similar to the case at
hand. The relevant portion of the said judgment is being reproduced
hereunder:
“3. By means of the writ petition, 34 petitioners who were
daily wage employees of the Cooperative Electric Supply
Society (hereinafter referred to as “the Society”) had prayed
for regularisation of their services in the U.P. State Electricity
Board (hereinafter referred to as “the Electricity Board”). It
appears that the Society had been taken over by the Electricity
Board on 3-4-1997. A copy of the
minutes of the proceeding
dated 3-4-1997 is Annexure P-2 to this appeal. That
proceeding was presided over by the Minister of Cooperatives,
U.P. Government and there were a large number of senior
officers of the State Government present in the proceeding.
In the said proceeding, it was mentioned that the daily wage
employees of the Society who are being taken over by the
Board will start working in the Electricity Board “in the same
manner and position”.
4. Pursuant to the said proceeding, the respondents herein
were 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 working
on daily-wage basis from before 4-5-1990 on the existing
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vacant posts and that an examination for selection would be
held for that purpose.
6. The contention of the writ petitioners (the respondents
herein) was that since the Society had been taken over by the
Electricity Board, the decision dated 28-11-1996 taken by
the Electricity Board with regard to its daily wage employees
will also be applicable to the employees of the Society who
were working from before 4-5-1990 and whose services stood
transferred to the Electricity Board and who were working
with the Electricity Board on daily-wage basis.
7. The learned Single Judge in his judgment dated 21-9-1998
held that there was no ground for discriminating between two
sets of employees who are daily wagers, namely, (i) the
original employees of the Electricity Board, and (ii) the
employees of the Society, who subsequently became the
employees of the Electricity Board when the Society was taken
over by the Electricity Board. This view of the learned Single
Judge was upheld by the Division Bench of the High Court.
8. We are in agreement with the view taken by the Division
Bench and the learned Single Judge.
9. The writ petitioners who were daily wagers in the service
of the Society were appointed in the Society before 4-5-1990
and their services were taken over by the Electricity Board
“in the same manner and position”. In our opinion, this would
mean that their services in the Society cannot be ignored for
considering them
for the benefit of the order dated 28-11-
1996.
……..
19. In the present case many of the writ petitioners have been
working from 1985 i.e. they have put in about 22 years’
service and it will surely not be reasonable if their claim for
regularisation is denied even after such a long period of
service. Hence apart from discrimination, Article 14 of the
Constitution will also be violated on the ground of
arbitrariness and unreasonableness if employees who have
put in such a long service are denied the benefit of
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regularisation and are made to face the same selection which
fresh recruits have to face.”
27. The principles of natural justice, too, demand that the Appellant
cannot be denied the benefit of the regularisation of services when his
similarly placed fellow employees have been granted the said benefit.
28. Therefore, we do not agree with the view taken in the impugned
judgment of the High Court as well as by the learned Single Judge in
Writ Petition No. 31399 (W) of 2017. The Appellant herein, in our
considered opinion, is entitled to receive back wages and benefits from
1991, along with an interest of 10%.
29. Accordingly, the Appeal is allowed. The impugned judgment
of the High Court dated 10.12.2019, passed in MAT No. 611 of 2018
and CAN No. 10038/2018 is hereby set aside. However, in the facts
and circumstances of the case, we do not make any order as to costs.
Divya Pandey
Appeal allowed.
(Assisted by : Roopanshi Virang, LCRA)
OM PRAKASH BANERJEE v. THE STATE OF WEST BENGAL
& ORS. [KRISHNA MURARI, J.]