Calcutta High Court (Appellete Side)
Anjum Ara vs State Of West Bengal & Ors on 13 June, 2025
IN THE HIGH COURT AT CALCUTTA
CONSTITUTIONAL WRIT JURISDICTION
APPELLATE SIDE
Present:
The Hon'ble Justice Rai Chattopadhyay
WPA 9636 of 2019
Anjum Ara
Vs.
State of West Bengal & Ors.
With
WPA 9637 of 2019
CAN 1 of 2019 (Old No. CAN 7820 of 2019)
Bikash Senapati
Vs.
State of West Bengal & Ors.
With
WPA 9641 of 2019
CAN 1 of 2019 (Old No. CAN 7821 of 2019)
Asma Begum
Vs.
State of West Bengal & Ors.
With
WPA 9642 of 2019
CAN 1 of 2019 (Old No. CAN 7822 of 2019)
Abu Basar
Vs.
State of West Bengal & Ors.
With
WPA 9643 of 2019
CAN 1 of 2019 (Old No. CAN 7823 of 2019)
Snehanshu Kumar Majumder
Vs.
State of West Bengal & Ors.
With
2 of 23
WPA 9644 of 2019
CAN 1 of 2019 (Old No. CAN 7824 of 2019)
Mehrun Nessa
Vs.
State of West Bengal & Ors.
With
WPA 9645 of 2019
CAN 1 of 2019 (Old No. 7828 of 2019)
Abdul Salim
Vs.
State of West Bengal & Ors.
With
WPA 9646 of 2019
CAN 1 of 2019 (Old No. 7825 of 2019)
Jamila Warsa
Vs.
State of West Bengal & Ors.
With
WPA 9648 of 2019
CAN 1 of 2019 (Old No. 7827 of 2019)
Mujibar Rahaman
Vs.
State of West Bengal & Ors.
With
WPA 9651 of 2019
CAN 1 of 2019 (Old No. 7829 of 2019)
Sk. Roushan Ali
Vs.
State of West Bengal & Ors.
With
WPA 9652 of 2019
CAN 1 of 2019 (Old No. 7830 of 2019)
Salauddin Laskar
Vs.
State of West Bengal & Ors.
With
3 of 23
WPA 9655 of 2019
CAN 1 of 2019 (Old No. 7831 of 2019)
Tabassum Ara
Vs.
State of West Bengal & Ors.
For the Petitioner : Mr. Bikash Ranjan Bhattacharya
: Mr. Samim Ahmed
: Mr. Aniruddha Singh,
: Mr. Ambiya Khatun
For the State respondents : Mr. Jahar lal Dey, ld. AGP
: Mr. Shamim Ul Bari
For the State
in WPA 9642 of 2019 : Mr. Jahar Dutta,
: Mr. Bipin Ghosh
Judgment on : 13.06.2025
Rai Chattopadhyay, J. :-
1. 12 (twelve) writ petitions as stated above are heard together and
being disposed of by dint of this common judgment, as subject-
matter of those are similar.
2. The moot question in these writ petitions is whether the petitioners,
who were appointed, though without following any recruitment
Rules or Regulations (as those were not formulated at that period of
time) and served continuously for more than 10 years solely on
contractual basis and not against any sanctioned vacant posts,
would be entitled for regularisation against permanent sanctioned
vacant posts.
4 of 23
3. The respondent / West Bengal Minorities Development and Finance
Corporation [in short “the Corporation”] was established in 1995,
pursuant to the provisions of the West Bengal Minorities
Development and Finance Corporation Act, 1995, [in short “Act of
1995] with the skeletal managerial persons, like the managing
director, the general manager and the chief accounts officer. The
subordinate staff were recruited from the open market on temporary
and contract basis. At the relevant point of time no recruitment
Rules were promulgated or in operation in terms of section 8(3)(b) of
the said Act of 1995. The writ petitioners were such appointees,
working with the respondent/Corporation, since 24th September,
2002. Their engagement with the respondent/Corporation has been
extended from time to time, rendering their service with the said
Corporation, to be continuous and uninterrupted for several years.
According to the petitioners, their services have been indispensable
and permanent in nature, in view of the object for which the
Corporation was established under the said Act of 1995 and was
functioning. For all these years the writ petitioners were made to do
under orders, all the same work as would have been done by any
permanent employee of the said Corporation.
4. A letter dated 15th September, 2005, is worth mentioning, which
was forwarded by the managing director of the said Corporation to
the Joint Secretary, Monorities Develpoment and Welfare
Department, Government of West Bengal, seeking regularisation of
the employees of the said Corporation. It has been informed that the
appointments were made by the concerned ministry by issuance of
open advertisement and upon consideration of the applications
received from the respective applicants. Vide the order dated 29th
November, 2007, 15 temporary and contractual employees of the
said Corporation were regularised. Later on, the Corporation has
sought for sanction of further number of posts vide letter dated
22nd August, 2008 and for regularisation of the other employees of
the Corporation vide letter dated 9th July, 2010. The petitioner‟s
5 of 23
representation to the government dated 30th October, 2012, has
followed thereafter. The writ petitioners have mentioned about the
resolution of the meeting dated 31st October, 2012 and
correspondences dated 13th March, 2013 and 14th May, 2013 and
the prayer of the Corporation for sanction of 148 posts and
regularisation of the petitioners against those sanctioned posts.
5. Vide the departmental order dated 18th March, 2015, proposal was
made for creation of 45 posts, after recording the finding that 137
posts have been created in excess of the sanction granted by the
government and filled up irregularly by the said Corporation.
6. Ultimately, vide order dated 31st July, 2015, the respondent/State
has sanctioned 54 posts for the Corporation but the prayer for
regularisation of the petitioners was not considered. In stead the
government has decided to fill up the said sanctioned posts only
after framing of Regulations for recruitment, following the due
procedure provided therein with further direction that the
contractual employees may be replaced as and when the regular
employees would be appointed. Thus as per office-note dated 18th
March, 2015, upon appointment of the regular employees, the
petitioner‟s contractual services should have been discontinued.
7. The Recruitment Rules namely, the West Bengal Minorities
Development and Finance Corporation (Condition of Appointment of
Officers and Other Employees) Regulation, 2015, has come into
effect vide notification dated 25th February, 2016. A recruitment
notification has been published being No.- 01 of 2019 dated 18th
January, 2019 seeking applications for appointment in the
respondent/Corporation, without taking into account the aspect of
regularization of the writ petitioners.
8. Hence, being aggrieved the writ petitioners have moved the instant
case seeking relief that their service may be regularised, by setting
6 of 23
aside the impugned departmental order dated 18th March, 2015
and notification dated 31st July, 2015, to the extent it has
restrained the Corporation form regularising the services of the
petitioners and the recruitment notification dated 18th January,
2019.
9. The petitioners have stated that they being appointed by open
advertisement, in absence of any specific Rules for appointment and
having allowed to continue to work continuously for a considerable
period of time and having discharged permanent nature of duties,
should have been regularised against the said permanent posts
created. In stead, in their case the respondent has created embargo
and made their service subject to and till the time regular
appointments are made, which according to the writ petitioners is
illegal and unsustainable. The petitioners have stated that other
similarly circumstanced persons who are junior to some of them,
have been regularized. They say that thus the respondents have
exercised both discriminatory treatment and arbitrariness vide the
impugned departmental order dated 18th March, 2015 and
notification dated 31st July, 2015, for which both are liable to be
set aside to the extent it has restrained the Corporation form
regularising the services of the petitioners. That consequently the
recruitment notification as above, is also liable to be set aside.
10. Mr.Ahmed appearing for the petitioners have emphasised that in
2007, some employees of the Corporation, only similarly situated as
the present petitioners, were regularised in service. Further that the
Corporation itself has principally agreed for regularisation of the
petitioners and communicated its decision to the State, which is the
appropriate authority for sanction of posts. It has been submitted
that the duties discharged by the petitioners are essential for the
functioning of the Corporation and is perennial in nature. In the
matter of regularisation of the employees similarly circumstanced
with the present petitioners, discrimination has also been made, in
7 of 23
so far as persons junior to the present petitioners have been given
permanent status, whereas the petitioners who have been working
since prior dates, have been ignored.
11. It has been stated that non-regularisation of service of the
petitioners, despite fulfilling the essential duty of a permanent
employee, though others of similar kind having been made
permanent, constitutes violation of fundamental right of the
petitioners as guaranteed under Article 14 of the Constitution of
India. That, the petitioners having discharged responsibilities akin
to the permanent employees, and having been denied with the equal
pay and treatment, has subjected them to discrimination and
inequal treatment amongst the equals. It is submitted that there is
no justifiable reason as to why the petitioners should be treated
otherwise than the persons who have already been regularised, as
all of them have been similarly situated. It is submitted further that
the petitioners having been recruited at the time of exigency and
their labour having been utilised when the Corporation needed it
and after having rendered their service continuously and
discharging duties which are perennial in nature, not regularising
the service of the petitioners would amount to exploitation and
against the rights guaranteed to a citizen under Articles 14 and 23
of the Constitution.
12. It has been argued on behalf of the petitioners that where the
employees are engaged in permanent posts for an extended period
as temporary or contractual workers, despite the existence of
substantive permanent vacancies, and where their services are
essential for the functioning of the organisation, the continued
temporary or contractual engagement is illegal and unjustified, that
such employees are entitled to regularisation of their services. That,
imposition of condition while sanctioning the posts is not only to
jeopardise the Corporation‟s autonomy to manage its own workforce
but also arbitrary and unreasonable in the facts and circumstances
8 of 23
of the instant case. The petitioners have stated that the impugned
orders as above have defied the principles of natural justice as well
as fairness. It has been submitted further that upholding the
petitioner‟s right to regularisation aligns with the broad public
policy and objectives, including non-exploitation of workforce,
promoting stable employment, fostering economic security and
ensuring social justice. Regularising the petitioners service serves
the public interest by maintaining the efficient functioning of the
Corporation and upholding the dignity and rights of its employees.
It is submitted further that non-regularisation of the service of the
petitioner amounts to violation of article 23 of the Constitution,
particularly when the respondent authorities are supposed to be the
model employers. For the reasons as stated above, the petitioners
have prayed for setting aside of the impugned order and notification
as mentioned above and for issuance of an order, directing their
regularisation in service.
13. The following judgments have been referred to by the writ
petitioners in this case :
(i) Central Inland Water Transport Corporation
Limited vs Brojonath Ganguly (1986) 3 SCC 156;
(ii) Chandraprakash Madhabrao Dadwa and
Others vs Union of India and Others AIR 1999 SC
59;
(iii) Secretary of Karnataka vs Uma Devi (2006) 4
SCC 1;
(iv) State of Karnataka and Others vs M.L.Keshari
and Others (2010) 9 SCC 247;
(v) Nihal Singh and Others vs State of Punjab and
Others (2013) 14 SCC 65;
(vi) Amarendra Kumar Mahapatra vs State of
Orissa (2014) 4 SCC 583;
(vii) Amarkant Rai vs State of Bihar (2015) 8 SCC
265;
(viii) Narendra Kumar Tiwari vs State of
Jharkhand (2018) 8 SCC 238;
(ix) North Delhi Municipal Corporation vs Harleen
Kaur & Others (Delhi High Court Order dated 20th
November 2018 passed in WP(C) 3692 OF 2016);
9 of 23
(x) North Delhi Municipal Corporation vs Harleen
Kaur & Others AIR Online 2019 SC 1990;
(xi) Mahandi Coalfields Limited vs Brajrajnagar
Coalmines Workers Union 2024 SCC Online SC
270;
(xii) Board of Trustees for Syama Prasad
Mukherjee Port vs Union of India and Others 2024
SCC Online Cal 2759;
(xiii) Sylvia Bongi Mahlangu South African
Domestic Service and Allied vs Minister of Labour
the Constitutional Court of South Africa.
14. Mr.Dey learned AGP has represented the State respondent, in this
writ petition. The respondent has supported the impugned order
and has sought for dismissal of the writ petitions. The respondent
has not denied the fact of the petitioner‟s contractual employment
with the respondent/Corporation. Mr.Dey learned AGP has
submitted that the petitioner‟s prayer for regularisation has already
been rejected by the State vide letter dated 18th March, 2015. He
has further relied on the Supreme Court‟s verdict in Uma Devi’s
case (supra) to submit that steps are to be taken for regularisation
as a one time measure. He says that regularisation of the
contractual employees cannot be a practice to be followed
perpetually. Since once, on 29th November, 2007, contractual
employees of the Corporation has been regularised, therefore,
according to the respondent, there would be no further scope for
regularisation of the present writ petitioners. It has been further
submitted that the petitioner‟s induction in service was not done in
compliance with any Rules or Regulation to govern the process. In
such view of the fact their appointment is only illegal. Uma Devi’s
case (supra) has again been mentioned in this connection that in
the same, the Court has directed for regularisation of service of
those whose appointment might have been irregular, but the Court
has directed further that no such relief can be granted to those
persons whose appointment has been through an illegal process. It
is stated that the temporary nature of appointment was known to
the petitioners at the time of induction and they subsequently
10 of 23
cannot claim regularisation in the respective posts. Hence, Mr.Dey
has contended that the present writ petitions are liable to be
dismissed.
15. Certain facts are required to be discussed first. The petitioners have
stated that the respondent Corporation was established in 1995,
with the three managerial posts of a managing director, a general
manager and a chief accounts officer. The petitioners were inducted
in service on contract basis in order to implement the program of
respondent Corporation for self employment, vocational training,
and educational development of the minority community in terms of
the scheme of the West Bengal Minorities Development and Finance
Corporation Act, 1995. The fact that the petitioners were employed
on contract for a fixed period with the respondent Corporation, is
admitted by the respondent/Corporation in this case. They say that
the petitioner‟s engagement was for a fixed period and continuation
thereof would not be a rule but as per exigency, to which the
petitioners could claim no right. The Corporation in their affidavit-
in-opposition has though accepted that the petitioners have been
discharging the duties related with the core object of the
Corporation by working out plans for self employment programmes,
skill development, and other programs and other related and
ancillary works there of, but in effect, has denied as regards the
claim of the writ petitioners to have any vested right over the posts
to which they have been appointed, since the posts were not the
sanctioned posts and the appointments were not made in terms of
any prescribed Rules or Regulations for the same. Also the
respondent says that the specific job done by the writ petitioners is
not of permanent nature but is centered around and depending
upon the nature of programme of the Corporation on which they
have been working. Therefore, the respondent has made out a case
that the petitioners are of a separate class than those who work
akin to a permanent employees who discharges permanent nature
of duty in the Corporation. According to the respondent, those two
11 of 23
groups of employees cannot be equated or the petitioners cannot
claim equal benefit like the others.
16. An undisputed fact is that at the time of induction of the present
writ petitioners into the service on 24th September, 2002, there has
not been any Rules promulgated for governing such recruitment in
the respondent/Corporation. Such Rules/Regulations in the form of
the West Bengal Minorities Development and Finance Corporation
(Condition of Appointment of Officers and Other Employees)
Regulation, 2015, has only come into effect vide notification dated
25th February, 2016. 15 posts of support staff of the Corporation
were sanctioned firstly, vide notification dated 29th November,
2007, that is before promulgation of the said Regulations.
Thereafter in the year 2015, vide the impugned departmental order
dated 18th March, 2015 and the notification dated 31st July, 2015,
54 more posts have been sanctioned. However, it has been directed
that with the employment of the regular staff in the Corporation as
per the Regulations dated 31st July, 2015, the temporary and
contractual employees should be discontinued.
17. Therefore, admittedly before 29th November, 2007, there was no
sanctioned posts in the respondent Corporation. Several persons
were therefore engaged temporarily on contract basis and for a
specified period of time. They have been engaged for carrying on the
functions of the Corporation as entrusted by the statute on the
same. The duty roster annexed with the writ petitions and the
statements made by the petitioners therein are sufficient to show
the kind of job which were being discharged by the petitioners in
the said Corporation. Admittedly also the petitioners have been
engaged in working out plans for self employment programmes, skill
development, and other programs and other related and ancillary
works there of which are the core areas of functioning of the
Corporation in terms of the scheme of the statute, by dint of which
the same has been created. Thus, the functions discharged by the
12 of 23
petitioners cannot be termed as temporary in nature. The
Corporation basically would not have any existence without the
functions in which the petitioners take part, as its creation is for the
object to carry out those functions only. To this extent, the stand of
the respondent that the petitioners do discharge duties of temporary
and only emergent in nature which do not have a tenet to be of
permanent nature of duty under the said employer, does not inspire
much confidence in the mind of this Court. Secondly, admittedly,
the petitioners have been allowed to work since the date of their
appointment, without any interruption with the respondent
Corporation. This at one hand proves the perpetual nature of the
job they have been discharging and on the other hand shows that
the respondent/Corporation has utilised their labour to carry on the
functions of the Corporation for prolonged period, continuously and
uninterruptedly, though without reciprocating the petitioners with
permanent status. Finally, creation of posts by the
respondent/State, though belatedly in the year 2015, for the same
job description as have been discharged by the petitioners, should
rest all the disputes at peace in this regard, that the duties
discharged by the petitioners in the respondent/Corporation is not
spare-able, so far as functions of the Corporation are concerned.
Long standing, continuous work parallels that of permanent
employees. The duties discharged by the present petitioners are
evidently perennial rather than sporadic or project-based. Or else
there would not have been any requirement by the
respondent/Corporation to continue with their service under the
grub of a contractual and time bound engagement, though
extracting from them only continuous and perennial nature of job.
Also that even after regularization of 15 employees in the year 2007,
the petitioners have been carried on with till now as contractual,
though treated at par with permanent employees but yet deprived of
the monetary and other benefits being paid to permanent
employees. In the even circumstances this Court has held in the
13 of 23
case of Board of Trustees for Shyama Prasad Mukherjee Port (supra)
that
“49. Non-regularization and engagement on a
temporary basis in permanent posts and for over 20
years, would also indicate that the work done by the
said workmen is perineal in nature. Their services
were and are vitally necessary for the functioning of
the Port Trust. The continued engagement of the
said workmen as temporary or contractual is
therefore indeed illegal and unjustified.”
18. The Court in this regard also seeks to rely on a very recent
judgment of the Supreme Court in Shripal and Another vs Nagar
Nigam Ghaziabad reported in 2025 SCC Online SC 221 in which the
Court has expressed in the following words :
“13. By requiring the same tasks (planting, pruning,
general upkeep) from the Appellant Workmen as
from regular Gardeners but still compensating them
inadequately and inconsistently the Respondent
Employer has effectively engaged in an unfair labour
practice. The principle of “equal pay for equal work,”
repeatedly emphasized by this Court, cannot be
casually disregarded when workers have served for
extended periods in roles resembling those of
permanent employees. Long-standing assignments
under the Employer’s direct supervision belie any
notion that these were mere short-term casual
engagements.”
19. With reference to Uma Devi’s case (supra) it is the contention of the
respondent that no contractual employee can claim permanent
absorption without adherence to the constitutional requirements
and availability of duly sanctioned vacancies. In this regard it is
worth mentioning the relevant portion of Shripal‘s case (supra),
which is as follows:
“14. The Respondent Employer places reliance on
Umadevi (supra) to contend that daily-wage or
temporary employees cannot claim permanent
absorption in the absence of statutory rules
14 of 23providing such absorption. However, as frequently
reiterated, Uma Devi itself distinguishes between
appointments that are “illegal” and those that are
“irregular,” the latter being eligible for
regularization if they meet certain conditions. More
importantly, Uma Devi cannot serve as a shield to
justify exploitative engagements persisting for years
without the Employer undertaking legitimate
recruitment. Given the record which shows no true
contractor-based arrangement and a consistent need
for permanent horticultural staff the alleged
asserted ban on fresh recruitment, though real,
cannot justify indefinite daily-wage status or
continued unfair practices.”
20. The right against exploitation is given in the Indian Constitution as
a fundamental right enshrined in the Part-III to safeguard
individuals from practices such as slavery, beggarism, child labor,
bonded labor, and other forms of forced labor. These are also part of
the basic structure of the Indian constitution referred to in
Kesavananda Bharati v. State of Kerala (1973). Articles 23 and 24 of
the Constitution ensure human dignity by prohibiting such
exploitative practices, underscoring the nation’s commitment to
protecting its citizens from exploitation in all its forms. Another
recent verdict by the Supreme Court may be mentioned in this
regard in the case of Jaggo vs Union of India 2024 SCC Online SC
3826. The following portion thereof may be quoted as the principles
narrated therein applies to this case also:
“22. The pervasive misuse of temporary employment
contracts, as exemplified in this case, reflects a
broader systemic issue that adversely affects workers’
rights and job security. In the private sector, the rise
of the gig economy has led to an increase in
precarious employment arrangements, often
characterized by lack of benefits, job security, and
fair treatment. Such practices have been criticized for
exploiting workers and undermining labour
standards. Government institutions, entrusted with
upholding the principles of fairness and justice, bear
an even greater responsibility to avoid such
exploitative employment practices. When public sector
entities engage in misuse of temporary contracts, it
15 of 23not only mirrors the detrimental trends observed in
the gig economy but also sets a concerning precedent
that can erode public trust in governmental
operations.
** ** **
25. It is a disconcerting reality that temporary
employees, particularly in government institutions,
often face multifaceted forms of exploitation. While
the foundational purpose of temporary contracts may
have been to address short-term or seasonal needs,
they have increasingly become a mechanism to evade
long-term obligations owed to employees. These
practices manifest in several ways:
• Misuse of “Temporary” Labels: Employees engaged for
work that is essential, recurring, and integral to the
functioning of an institution are often labeled as
“temporary” or “contractual,” even when their roles
mirror those of regular employees. Such
misclassification deprives workers of the dignity,
security, and benefits that regular employees are
entitled to, despite performing identical tasks.
• Arbitrary Termination: Temporary employees are
frequently dismissed without cause or notice, as seen
in the present case. This practice undermines the
principles of natural justice and subjects workers to a
state of constant insecurity, regardless of the quality
or duration of their service.
• Lack of Career Progression: Temporary employees
often find themselves excluded from opportunities for
skill development, promotions, or incremental pay
raises. They remain stagnant in their roles, creating
a systemic disparity between them and their regular
counterparts, despite their contributions being
equally significant.
• Using Outsourcing as a Shield: Institutions
increasingly resort to outsourcing roles performed by
temporary employees, effectively replacing one set of
exploited workers with another. This practice not
only perpetuates exploitation but also demonstrates a
deliberate effort to bypass the obligation to offer
regular employment.
Denial of Basic Rights and Benefits: Temporary
employees are often denied fundamental benefits such
16 of 23as pension, provident fund, health insurance, and
paid leave, even when their tenure spans decades.
This lack of social security subjects them and their
families to undue hardship, especially in cases of
illness, retirement, or unforeseen circumstances.”
21. The Court has also recorded its findings there in the following
manner:
“26. While the judgment in Uma Devi (supra) sought
to curtail the practice of backdoor entries and
ensure appointments adhered to constitutional
principles, it is regrettable that its principles are
often misinterpreted or misapplied to deny
legitimate claims of long-serving employees. This
judgment aimed to distinguish between “illegal” and
“irregular” appointments. It categorically held that
employees in irregular appointments, who were
engaged in duly sanctioned posts and had served
continuously for more than ten years, should be
considered for regularization as a one-time measure.
However, the laudable intent of the judgment is
being subverted when institutions rely on its dicta to
indiscriminately reject the claims of employees, even
in cases where their appointments are not illegal,
but merely lack adherence to procedural formalities.
Government departments often cite the judgment in
Uma Devi (supra) to argue that no vested right to
regularization exists for temporary employees,
overlooking the judgment’s explicit acknowledgment
of cases where regularization is appropriate. This
selective application distorts the judgment’s spirit
and purpose, effectively weaponizing it against
employees who have rendered indispensable services
over decades.
27. In light of these considerations, in our opinion, it
is imperative for government departments to lead by
example in providing fair and stable employment.
Engaging workers on a temporary basis for extended
periods, especially when their roles are integral to
the organization’s functioning, not only contravenes
international labour standards but also exposes the
organization to legal challenges and undermines
employee morale. By ensuring fair employment
practices, government institutions can reduce the
burden of unnecessary litigation, promote job
security, and uphold the principles of justice and
17 of 23fairness that they are meant to embody. This
approach aligns with international standards and
sets a positive precedent for the private sector to
follow, thereby contributing to the overall betterment
of labour practices in the country.”
22. Fair employment practices by the government institution, is what
the law and the rules of fair play and fair practice demand. The
Supreme Court in the case of Uma Devi (supra) has emphasized
requirement to prevent any back door entry in government services.
In this regard the Court in Uma Devi (supra) has mentioned that ”
………………….. the Union of India, the State Governments and their
instrumentalities should take steps to regularize as a one time
measure, the services of such irregularly appointed, who have
worked for ten years or more in duly sanctioned posts but not under
cover of orders of courts or of tribunals and should further ensure
that regular recruitments are undertaken to fill those vacant
sanctioned posts that require to be filled up, in cases where
temporary employees or daily wagers are being now employed.” The
foundation on which the Court has distinguished between „illegal‟
and „irregular‟ appointments, is on the basis as to whether the
person has been appointed against sanctioned vacant post and has
continued therein without the intervention of any order of Court or
Tribunal.
23. The question in this case therefore is how should one address the
appointment of the present petitioners with the
respondent/Corporation; whether their appointments are „illegal‟ or
„irregular‟ appointments as per law settled in Uma Devi’s case
(supra). The Court finds that if there had been sanctioned vacant
positions in the respondent/Corporation at the time of the
petitioners’ appointment, the issue of their being not appointed to
those positions may have been effectively contested, referencing the
judgement of Uma Devi (supra). The fact in this case is a little
different. At the time of appointment of the petitioners there were no
18 of 23
posts sanctioned in the Corporation and this is an admitted fact in
the instant case. The records have revealed that 15 posts were
regularized in 2007 [vide letter dated 29th November, 2007] and
thereafter in 2015 [vide letter dated 31st July, 2015], 54 posts have
been created in different categories. The Recruitment Rules have
come into effect only in the year 2016. Though function of the
Corporation was indispensable since from its inception in 1995,
that too in terms of the scope and object as enumerated in the Act
of 1995. To discharge those duties and functions the Corporation
appointed the petitioners temporarily on contract basis for the
reason that there was no post sanctioned at the relevant point of
time, to appoint any employee permanently. Had it been otherwise
and had the Recruitment Rules been promulgated at that point of
time there would not have been any necessity to appoint any person
on contract basis. Therefore, the distinction made between the
„irregular‟ and „illegal‟ appointments, as enumerated in Uma Devi’s
case (supra), would not be applicable in the factual background of
this case. In this regard the observation of the Supreme Court in the
case of M.L.Keshri (supra) is also worth noting, which is as follows:
“7. It is evident from the above that there is an
exception to the general principles against
“regularisation” enunciated in Umadevi (3) [(2006) 4
SCC 1] , if the following conditions are fulfilled:
(i) The employee concerned should have worked for
10 years or more in duly sanctioned post without the
benefit or protection of the interim order of any
court or tribunal. In other words, the State
Government or its instrumentality should have
employed the employee and continued him in service
voluntarily and continuously for more than ten
years.
(ii) The appointment of such employee should not be
illegal, even if irregular. Where the appointments
are not made or continued against sanctioned posts
or where the persons appointed do not possess the
prescribed minimum qualifications, the
appointments will be considered to be illegal. But
where the person employed possessed the prescribed
19 of 23
qualifications and was working against sanctioned
posts, but had been selected without undergoing the
process of open competitive selection, such
appointments are considered to be irregular.”
24. On the basis of the particular facts of this case, the Court therefore
is faced with the question whether induction of the petitioners in
service can be treated as „illegal‟ or „irregular‟ or as a „back door
entry‟;
25. Firstly, it should be mentioned that the petitioners have been
working continuously and uninterruptedly, on temporary basis,
since from the date of their respective appointments, till date. Their
appointment or continuation in service has not been subject to any
Court order but due to voluntary extension of their contract period
by the Authority from time to time. These facts are not disputed in
this case. Previously in this judgment it has been discussed that the
petitioners were engaged and have served perennial nature of
duties. It is more so evident as the petitioners have been engaged
when there was no post created to discharge those perennial nature
of duties in the Corporation. It is not that in spite of there being
sanctioned vacant posts the petitioners have been engaged
temporarily on contract basis, against those sanctioned vacant
posts. Absence of any sanctioned posts in the Corporation
tantamount the petitioners‟ appointment against the substantive
vacant positions of staff in the Corporation, without which the
Corporation could not have functioned.
26. To assume a statutory body, to have discharged its statutory
functions for all these years, since from the date of its coming into
being, without any requirement of support staff is inconceivable and
not plausible. Therefore, when the requirement subsisted and any
person is made to labour in those essential and compulsory areas of
work which though are substantive, but are marred with vacuum
due to non availability of any permanent employee, such person
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cannot be treated as only temporary and sporadic. Rather the
principles of fair play and effective public policy should encompass
such individuals necessitating equitable treatment in employment
through the regularization of their services. Or otherwise, it would
amount to misuse of temporary level as envisaged in Jaggo’s case
(supra). Therefore, the petitioner‟s appointment cannot be termed as
„illegal‟, as it has been envisaged in Uma Devi’s case (supra). A fair
practice by the employer therefore would demand that temporary
but long standing engagement of these persons be immediately
regularized by the said employer. On the background of the specific
facts of this case, it appears to be wrongful denial of employment
and regularization of the petitioners, which would not be
maintainable as held by the Supreme Court in Mehendi Coalfields
Limited‘s case (supra).
27. The other point raised by the respondent in this case is that in
accordance with the dictum in Uma Devi’s case (supra), the process
of regularization should be a one-time measure and in case of the
respondent/Corporation regularization of temporary employees has
already been done vide the order dated 29th November, 2007. Hence
no other persons can be regularized in accordance with law.
Pertinent is to note that in the order as above only 15 posts were
regularized whereas there was no explanation as to why the other
employees on contract including the present petitioners were not
regularized then or regarding what might be the differential factor to
give preference to those 15 persons who have been similarly placed
with the persons regularized vide the said order. It is a matter on
record that employee junior than the petitioners has been
regularized in the said order. It is also best known to the Authorities
and unknown to every body else as to what has prompted the said
Authorities from the date of appointment of the petitioners,
particularly from 2007 till 2015, not to create any posts in spite of
several requests being made in this regard and also to keep on
extracting labour from the petitioners without regularizing them in
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service. This is a glaring manifestation of sheer arbitrariness having
been exercised and an arbitrary action is not meant to be sustained
in the eye of law. To discriminate the similarly situated persons
without any justifiable reasons is also forbidden under the law. The
Corporation is required to undertake fair and logical policies for
employment and therefore cannot dispense with the service of the
petitioners when they have crossed their employable age, after
extracting service during their prime employable age. It would be
beneficial if the relevant portion of judgment of Supreme Court, in
Nihal Singh‘s case (supra) be quoted here:
“35. Therefore, it is clear that the existence of the
need for creation of the posts is a relevant factor
with reference to which the executive government is
required to take rational decision based on relevant
consideration. In our opinion, when the facts such
as the ones obtaining in the instant case
demonstrate that there is need for the creation of
posts, the failure of the executive government to
apply its mind and take a decision to create posts or
stop extracting work from persons such as the
appellants herein for decades together itself would
be arbitrary action (inaction) on the part of the
State.”
28. The Regulations dated 31st July, 2015 and the relevant note-sheet
dated 18th March, 2015 thereby directing for discontinuation of the
temporary and contract based employment of the petitioners, in
stead of regularizing them, appears to be discriminatory, arbitrary
and illegal. There would not be any justifiable reason as to why in
the year 2007 or thereafter the petitioner‟s services have not been
regularized still their labour has been extracted without appropriate
remuneration or regularization of their service. It is also a matter of
record that in the meeting dated 31st October, 2012 of the
respondent/Corporation and the Joint Secretary, Minority Affairs
Department, it has been resolved that service of the petitioners is
eligible for regularization. Evidently at a later point of time such
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decision is overturned, without any cogent reason being shown for
the same, which cannot be sustained in the eye of law.
29. The other aspect argued on behalf of the respondent in this case is
the alleged delay of the petitioners to file the instant case. It has
been submitted that the petitioners have come after inordinate and
unexplained delay to file this case, for which the present writ
petitions may not be sustainable. The record reveals that the
recruitment notification No.- 01 of 2019 dated 18th January, 2019
has been challenged in these writ petitions. The petitioners have
prayed for setting aside of the said notification. Therefore, the Court
finds no delay in filing the writ petitions and such argument by the
respondent, is only unsubstantiated.
30. All the discussions as above, leads to the only finding that the writ
petitioners having served the respondent/Corporation on contract
basis and temporarily though continuously and uninterruptedly, for
more than 10 years in the substantive positions therein, and their
appointments not being back door entries as at the time of their
induction there were no posts sanctioned for the Corporation, and
further the petitioners having been unlawfully discriminated from
the other similarly situated employees in case of regularization of
their service, would be eligible for regularization in the posts
sanctioned later on for the respondent/Corporation in the year
2015.
31. Hence, these writ petitions should be allowed.
32. The 12 writ petitions as mentioned above are allowed, with the
following directions:
I. The impugned office-note dated 18th March, 2015 is set
aside;
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II. The impugned notification dated 31st July, 2015, is set
aside to the extent it has restrained the Corporation form
regularising the services of the petitioners;
III. The impugned recruitment notification dated 18th
January, 2019 is set aside;
IV. The respondents, Corporation as well as the State, shall
take immediate appropriate measures for regularization of
the writ petitioners;
V. The writ petitioners shall be regularized in service, within a
period of 3 weeks from the date of communication of copy of
this order, with fixation of their pay;
VI. Arrear salary shall be paid to the writ petitioners within a
period of 2 months from the date on which the order for
their regularization is issued;
VII. The respondents would be at liberty to publish notification
for recruitment, for the residual vacant sanctioned posts,
after issuance of the order of regularization of the writ
petitioners.
33. The writ petitions as above are thus allowed and disposed of.
34. Urgent certified website copy of this judgment, if applied for, be
supplied to the parties upon compliance with all requisite
formalities.
(Rai Chattopadhyay, J.)