Calcutta High Court (Appellete Side)
Smt. Nupur Basu vs The Union Of India And Others on 9 July, 2025
2025:CHC-AS:1246
IN THE HIGH COURT AT CALCUTTA
CONSTITUTIONAL WRIT JURISDICTION
Appellate Side
Present:
The Hon'ble Justice Ajay Kumar Gupta
WPA 9463 of 2019
Smt. Nupur Basu
Versus
The Union of India and Others
For the Petitioner : Mr. Shamik Chatterjee, Adv.
Mr. Aditya Bikram Mahata, Adv.
Mr. Suman Bhanja, Adv.
Mr. Sahil Kabir, Adv.
Ms. Shrabanti Khatun, Adv.
For the Respondent Nos. 3 to 6 : Mr. L. K. Gupta, Ld. Sr. Adv.
Mr. D. N. Ray, Ld. Sr. Adv.
Mr. Bhaskar Mukherjee, Adv.
Mr. D. Dutta, Adv.
Heard on : 07.05.2025
Judgment on : 09.07.2025
2025:CHC-AS:1246
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Ajay Kumar Gupta, J:
1. This instant writ petition, filed by the Petitioner, is the
second round of litigation seeking regularisation of her service along
with consequential benefits.
2. The brief facts of the writ petitioner is that she was appointed
as a Secretarial Assistant at Indian Institute of Management,
Calcutta (in short IIMC) on 18th December, 2007 with due approval
from the Ministry of Human Resource Development (in short MHRD).
Her appointment was initially on contractual basis for a period of two
years i.e. from 18.12.2007 to 17.12.2009. Thereafter, her contractual
appointment was renewed time to time without any break in service
till 25.12.2018. During this period, the Writ Petitioner discharged her
duties alongside other regular employees.
3. However, on 16th August, 2018, IIMC issued a fresh letter of
engagement effective from 1st January, 2018 upto December 31,2018
which arbitrarily and retrospectively nullified her previous service.
Being aggrieved by the said engagement letter dated 16.08.2018, the
petitioner earlier filed a writ petition being Writ Petition No.
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24205/2018 with prayer to regularise the service from the date of
initial appointment, in accordance with law.
4. The said writ petition was heard and disposed of by Co-
Ordinate Bench of this Court vide order dated 13.12.2018 with
following direction as inter alia: –
“Accordingly, the said impugned proposal dated 16th
August, 2018 stands withdrawn and cancelled.
Mr. Bari, learned Counsel for the petitioner further
submits that since the petitioner has been serving the
respondent Institute for about 11 years and her
performance has been impeccable, she should be
considered for permanent absorption.
I grant liberty to the petitioner to make a prayer for
permanent absorption to the respondent no. 6 in
course of tomorrow.
The respondent no. 6 shall take a reasoned decision
on such representation of the petitioner in accordance
with law as early as possible, preferably by 25th
December, 2018, since that is the date when the
contractual tenure of the petitioner expires. The
decision so taken shall be communicated to the
petitioner on the day itself.
2025:CHC-AS:1246
4Needless to say, that the performance of the petitioner
over last 11 years shall be considered by the
respondent and also given the fact that she is 59
years old, it is expected that the respondent no. 6
shall consider the petitioner’s case sympathetically.
No useful purpose will be served by keeping the writ
petition pending. Since no affidavit has been called
for, allegations contained in the writ petition are
deemed not to be admitted by the respondents.
WP No. 24205 of 2018 is, accordingly, disposed of.”
5. In pursuant to the said direction passed by the Co-ordinate
Bench of this Court, the writ petitioner submitted her representation
with a prayer for permanent absorption in service on 14.12.2018. The
said representation was duly received by the office of Board of
Governors, Indian Institute of Management, Calcutta. Prior to that,
the order passed by the Co-ordinate Bench was also duly
communicated upon the respondent concerned. The said
communication was received by respective office.
6. The time limit granted by the Hon’ble Co-ordinate Bench for
taking appropriate action expired on 25.12.2018. However, no
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decision was taken by the respondent no. 6 in terms of order passed
by the Hon’ble Co-ordinate Bench within the stipulated period. On
24.12.2018, the Acting Director of IIM Calcutta informed that the
representation dated 14.12.2018 had been placed before the Board of
Governors for consideration and that the decision of the Board shall
be communicated without any indication and/or mentioning
regarding further continuation of service to the petitioner as her
tenure of service was expiring on 25.12.2018. No reference was made
regarding the continuation of the service beyond 25.12.2018, which
marked the end of her contractual tenure. Despite the impending
deadline, no reasoned decision was communicated to the petitioner.
Such inaction and failure on the part of the respondent constitute a
deliberate, contumacious and intentional violation of the order
passed by the Hon’ble Co-ordinate Bench. Consequently, the
petitioner’s service was discontinued on 25.12.2018.
7. After expiry of 2 months, the petitioner was served with a
letter dated 05.03.2019 wherein the decision of the Board of
Governors of IIM, Calcutta was communicated. The said decision,
structured in, containing eight points, denying the renewal of the
engagement of the petitioner but also rejected her legitimate and
2025:CHC-AS:1246
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justifiable claim for regularisation/absorption of her service.
Accordingly, the writ petitioner has filed this Writ Petition contending
herein that the impugned decision of the respondent in letter dated
05.03.2019 is liable to be set aside for the following reasons as
follows:-
a) In the letter issued to MHRD on January 31, 2006
wherein it was specifically mentioned that “there are
presently 12 posts of Stenographer in the grade of Rs.
5000-150-8000/ – lying vacant. Accordingly, you have
proposed to engage 6 (six) secretarial assistants
urgently where the minimum emoluments in the
Stenographer’s post would work out to Rs. 12,000/-
(approx.) per month which was at per with the regular
employees in accordance with the 5th CPC. The breakup
of the financial involvement was clearly mentioned and
duly approved by the MHRD and communicated to the
Director, IIM Calcutta vide their letter bearing no. F. 1-
8/2006-ST. V dated May 2, 2006.
In case of Faculty / Non-Faculty ratio, as per the
guideline of MHRD, student and faculty ratio should be
1:10 and the Faculty and Non-Faculty ratio should be
1:1.1. Present student strength in IIM Calcutta is 1260.
Thus, mathematical calculation comes to Faculty
strength is 1260 / 10 = 126. Simultaneously, Faculty
and Staff ratio should be 126 X 1.1 = 139. The present
regular non-teaching strength in the Institute is around
2025:CHC-AS:1246
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90 (including officers), so the absorption of all the 23
contractual employees could be accommodated easily.
This is nothing but a misrepresentation of the fact with
an intention to oust the petitioner from the zone of
consideration.
b) That letter issued to Director by MHRD on May 2,
2006 wherein it was clearly mentioned in the subject of
the letter “Conversion of 12 vacant posts of
stenographers to 6 posts of Secretarial Assistants” so
the re-designation words are not applicable for the posts
of Secretarial Assistants. Though these communications
are on record and still the respondents are so adamant
that they are denying the lawful claim of the petitioner
at the cost of misrepresentation and incorrect statement
of facts.
c) That in the letter issued to the MHRD on January, 31,
2006 wherein entire breakup was made for the
counterpart of the post even commitment was given to
the MHRD that “Additionally, other statutory and
welfare benefits, as applicable, would be given to such
staff”. On the basis of that MHRD had approved the
case in their letter No. F. 1-8/2006-TS. V dated May 2,
2006. Till date the petitioner does not get any statutory
benefits from the Institute. It is pertinent to mention that
the Institute authority has in the motive of disobeying its
superiors. Rather the IIMC has vitiated the spirit of the
Art. 21 and 23 of the Constitution of India upon seer
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denial of the legitimate claim of the petitioner that too at
the verge of her age of superannuation. However, the
IIMC has allowed person who had already crossed 60
years of age, but the case of the petitioner in spite of all
favourable conditions not been considered as the
petitioner did not agree to the proposal as made by the
respondent in memo dated 16.08.2018.
8. Petitioner further states that there is neither been any
resignation tendered on the part of the petitioner nor any formal
order of termination of service, for which the respondent authority
cannot freshly engage the petitioner in the same post. Moreover, the
initial appointment was granted as per the decision of the Board
upon being approved by the concerned Ministry for which the
Director in-charge of the said institution does not have any authority
and jurisdiction to overlap and override such decision of the Ministry
and thereby in an absolutely arbitrary and capricious manner engage
the petitioner freshly by giving a goby to the initial appointment and
the consequential benefits including any service, emoluments/
service benefits and most importantly the aspect of regularization for
discharging of continuous service for more than ten years has already
been under consideration of the concerned Ministry in compliance
with the judgment of The Hon’ble Apex Court passed in Secretary,
2025:CHC-AS:1246
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State of Karnataka & Ors. Vs. Umadevi (3) & Ors.1. Therefore,
such impugned communication dated 05.03.2019 is absolutely
without jurisdiction and a glaring of colourable exercise of power by
acting de hors the procedures of law and travelling beyond the legal
competence and jurisdiction of the concerned institution. Hence, this
Writ Petition.
SUBMISSION ON BEHALF OF THE PETITIONER:
9. Learned counsel appearing on behalf of the petitioner
strenuously argued and submitted that the IIM, Calcutta had offered
contractual appointment to the post of Secretarial Assistant to the
petitioner after issuing letter of appointment dated 18th December,
2007 upon following due process and Rules of Recruitment on a
contractual basis for a period of two years subject to further
extension and renewal of contract along with admissible service
benefits.
10. The service was extended and benefits were enhanced from
time to time. The service of the petitioner was lastly extended on
1
2006 (4) SCC 1
2025:CHC-AS:1246
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December 13, 2017 on the same post for a further period of one year
till 25th December, 2018 at a revised monthly emolument of Rs.
31,635/-.
11. The Ministry of Human Resource Development (MHRD),
Government of India had approved contractual employment under
the said Institution in pay role of IIM, Calcutta preferred an
application before the concerned State authority under the Ministry
of Human Resource Development, Government of India by stating
that all such employees who were recruited against permanent
vacancies by adhering to the Rules of Recruitment and Procedure
were offered consolidated by initially which was fixed as per the scale
of pay in course of regular employee for the particular post on August
2015.
12. The petitioner also highlighted to the fact that despite the
prolonged and uninterrupted period of service rendered by such
employees but neither had been regularised nor granted adequate
service benefits. In contrast, several other IIM had framed specific
rules for regularisation of employees under the pay role of the
concerned Institution.
2025:CHC-AS:1246
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13. It was further submitted that the concerned Ministry made a
communication on September 29, 2015 to the said Institution for
taking appropriate and necessary action in the matter of
regularisation of the contractual employees in the pay role of
Institution working for more than 8 years without any break of
service. The Memorandum was issued vide F.N.-19-1/2014-Skt. II
dated 2nd May, 2015 issued by the concerned Ministry to all the
Heads of Institutes or organisations under the Ministry of Human
Resource Development by referring to the judicial proceedings. In
view of the Memorandum also cautioned against further
appointments to sanctioned post without adhering to prescribe
recruitment process.
14. The petitioner was appointed against a sanctioned vacant
post by following proper recruitment procedures, including public
advertisement, formal selection process and with the prior approval of
the concerned Ministry. Therefore, having rendered continuous and
satisfactory service forover ten years of, she has legitimate
expectation of regularisation. Her performance was never found
wanting, nor was her appointment questioned as being illegal. Hence,
she fulfilled all the essential criteria for regularisation. The issuance
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of the engagement letter dated 16th August, 2018, arbitrarily nullified
her past service, is wholly unjustified, arbitrary, and legally
unsustainable. It disregards her appointment since December 2007,
and violates the decisions of competent authorities.
15. It was further submitted by the learned counsel that despite
the essential and permanent nature of her role, she continued to
remain on a contractual basis. Trusting her consistent performance
and dedication to the organization, she hoped for eventual
regularization. However, her service was abruptly discontinued after
11 years, which not only undermines her trust in the fairness of the
institution but also exemplifies a gross misuse of authority.
16. It was further contended that her continuous and exemplary
service for over a decade gives rise to a legitimate expectation of
regularization. Her work is indispensable for the smooth functioning
of the IIMC and denying her permanency, despite fulfilling perennial
responsibilities, constitutes a gross violation of fairness and equity.
17. It was also argued that the principle of equality enshrined in
the Constitution prohibits arbitrary discrimination between
2025:CHC-AS:1246
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contractual and permanent employees performing identical duties.
The denial of regularization amounts to unjust and unequal
treatment, violating Articles 14 and 21. Despite fulfilling all criteria
and consistently receiving service extensions in service based on
performance, the petitioner was given with termination instead of
regularization. This act of terminating a loyal and capable employee is
both unjustified and devoid of compassion.
18. The Learned counsel further argued that denying
regularization infringes upon Articles 14 and 21 of the Constitution,
depriving her of equal treatment and the right to livelihood. The
petitioner underscores the financial insecurity and absence of social
benefits-pension, medical coverage, and gratuity that have resulted
from her contractual status. This instability denies her the dignity
and security she rightfully deserves after years of dedicated service.
19. The continued refusal of regularization not only harms the
petitioner but also perpetuates inequality and lowers morale among
similarly placed employees. Such actions reflect a disregard for the
workforce’s welfare and justice. The arbitrary denial of regularization
2025:CHC-AS:1246
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constitutes a breach of Articles 14 (Equality before the law), 19(1)(g)
(Right to livelihood), and 21 (Protection of life and personal liberty).
20. The Learned counsel emphasizes the Hon’ble Supreme
Court’s judgment delivered in Jaggo v. Union of India2 which
recognized the indispensable nature of long-serving employees’ work
and condemned the misuse of temporary employment labels for roles
that are essential and recurring. The judgment affirmed that even
“irregular” appointments, if not “illegal,” warrant regularization under
the principles established in the Uma Devi (Supra) case.
21. Learned counsel has further placed reliance upon the
following judgments to support of his contention for regularisation of
the petitioner’s service as under: –
i) Secretary, State of Karnataka and Ors. Vs. Umadevi
(3) and Others3 particularly paragraphs nos. 43, 44, 47,
50 to 53;
ii) State of Karnataka and Others Vs. M.L. Kesari and
Others4 particularly paragraphs nos. 9 to 11;
2
2024 SCC Online SC 3826
3
(2006) 4 SCC 1;
4
(2010) 9 SCC 247;
2025:CHC-AS:1246
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iii) Nihal Singh and Others Vs. State of Punjab and
Others5 particularly paragraphs nos. 18, 20, 21, 22, 23
24, 28, 29, 31, 32, 33, 35, 36, 37, 39;
iv) Amarkant Rai Vs. State of Bihar & Ors.6 particularly
paragraphs nos. 4, 9 to 15;
v) Narendra Kumar Tiwari Versus State of Jharkhand &
Ors.7 particularly paragraphs nos. 2, 4, 5, 6, 12, 13, 14;
vi) Ravi Verma & Ors. Vs. Union of India & Ors.8
particularly paragraphs nos. 4, 5, 6, 12, 13, 14;
vii) Sheo Narain Nagar & Ors. Versus State of Uttar
Pradesh and Anr.9 particularly paragraphs nos. 1 to 3, 7
to 9;
viii) Chander Mohan Negi & Ors. Vs. State of H.P. and
Ors.10 Particularly paragraphs no. 13;
ix) Somesh Thapliyal & Anr. Vs. Vice Chancellor, H.N.B.
Garhwal University & Anr.11 particularly paragraphs
nos. 39 to 45, 49 and 50;
5
(2013) 14 SCC 65;
6
(2015) 8 SCC 265;
7
2018 (8) SCC 238;
8
2018 SCC OnLine SC 3860;
9
(2018) 13 SCC 432;
10
(2020) 5 SCC 732;
11
(2021) 10 SCC 116;
2025:CHC-AS:1246
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x) Raman Kumar & Ors. Vs. Union of India & Ors.12
particularly paragraphs nos. 8, 10 and 13;
xi) Jaggo v. Union of India and Ors.13 particularly
paragraphs nos. 10 to 28;
xii) Ushaben Joshi Versus Union of India & Ors.14
particularly paragraphs nos. 17 and 18;
xiii) Vinod Kumar & Ors. Versus Union of India & Ors.15
particularly paragraphs nos. 3 to 9;
xiv) Shripal & Anr. Vs. Nagar Nigam, Gaziabad16
particularly paragraphs nos. 5, 8, 11, 13, 14, 15, 18;
xv) Biswajit Goswami and Others Versus Secretary
(Municipal Affairs), State of WB and Others17
particularly paragraph no. 18;
xvi) Mahanadi Coalfields Ltd. Versus Brajrajnagar Coal
Mines Workers’ Union.18 ;
12
2023 SCC OnLine SC 1018;
13
2024 SCC Online SC 3826;
14
2024 SCC OnLine SC 2277;
15
(2024) 9 SCC 327;
16
2025 SCC OnLine SC 221;
17
2025 SCC OnLine Cal 393
18
2024 SCC OnLine SC 270;
2025:CHC-AS:1246
17
SUBMISSION ON BEHALF OF THE RESPONDENT NOS. 3 TO 6
22. Per contra, the learned senior counsel, Mr. Gupta appearing
on behalf of the respondent nos. 3 to 6 vehemently opposed the
prayer of the learned counsel appearing on behalf of the writ
petitioner and further submitted that on 19th July, 2007, a notice was
published for engagement of Secretarial Assistant on contractual
basis and the condition for upper age limit for such engagement was
40 years but the petitioner had offered her candidature against the
said contractual service by a letter dated 21st September, 2007 with a
request to relax the upper age limit though she reached the age of 48
years. Accordingly, as per her request, she was offered appointment
letter on 18th December, 2007 despite crossing age bar and the said
appointment was purely on contractual.
23. The petitioner had accepted her contractual engagement with
the IIMC on the basis of relaxation of her age. Whereas, for the
regular appointment, the question of age limit relaxation does not
arise and if such relaxation has been made, it would be illegal and
not merely irregular. Accordingly, on 29.09.2015, following the ratio
of Uma Devi‘s Case, the Ministry of Human Resource Development
intimated the respondent no. 3 that no one should be employed
2025:CHC-AS:1246
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against a sanctioned post without following the due process of
recruitment. Therefore, question of regularisation of the petitioner
does not arise at all.
24. It was further submitted that on 20th August, 2018, the
petitioner raised an objection with regard to pay package offered to
her for renewal of the contractual agreement. Non-regularisation was
never her grievance. Her only grievance was to effective date from
which her pay package as per the offer is to be implemented.
Accordingly, her earlier writ petition was actually with regard to the
challenge of her pay package. However, the Learned Co-ordinate
Bench, during hearing, gave a liberty to the petitioner to pray for her
regularisation by way of representation. Accordingly, the petitioner
had sent a representation on 14th December, 2018 claiming
regularisation of her service.
25. The Board of Governors of IIM, Calcutta took decision on
such representation and turned down only on the ground that there
was no sanction post of Secretarial Assistant in the Institution and
the engagement of the petitioner was purely contractual in nature
and not against the sanctioned vacant post.
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26. The said decision was taken by the Board of Governors on 5th
March, 2019 and finally concluded that the regularisation of her
appointment for service against any unsanctioned post could not be
allowed to the petitioner. The petitioner claims for regularisation for
her service as Secretarial Assistant in the present writ petition at the
age of 59 years on the date of filing of the writ petitioner i.e. on 25th
April, 2019 which is not tenable in law.
27. It was further submitted that the petitioner was engaged on
contractual appointment against an unsanctioned post at the age of
48 years though the upper age limit for such engagement was 40
years only. She joined and continued to be under contractual
engagement with full knowledge and of her own free will. The Writ
petitioner was well aware of the consequences of the contractual
engagement and, therefore, it does not confirm any right of
absorption in the IIMC.
28. Learned senior counsel further argued that the judgments
relied by the petitioner is not at all applicable in the present case as
the facts and circumstances of the case of the writ petitioner is totally
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different and strictly prohibited of an absorption or regularisation in
any of the unsanctioned post in view of the principle laid down in
Uma Devi‘s Case.
29. Under Rule 12(ix) of the Indian Institute of Management
Calcutta Society, the Board has the power “to crest teaching,
administrative, technical, ministerial and other posts under the
Institute other than the Post of Director and to make appointment
thereto provided that the posts so created are in the cadres and
Scales of Pay as approved by the Central Government in consultation
with the State Government from time to time”. In the present case
since for the cadre of Secretarial Assistant there was no Scale of Pay
approved by the Central Government in consultation with the State
Government, there was no Sanctioned Post for the same.
30. Learned senior counsel also relied upon the same judgment
passed in the case of Uma Devi (supra) particularly paragraph nos.
22, 31, 43, 47 and 52 contending therein that a Writ Court cannot
issue mandamus in favour of the employees directing the
Government to make them permanent if the employees cannot show
that they have any enforceable legal right to be permanently observed
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or that the State has a legal duty to make them permanent.
Whatsoever law laid down in Uma Devi‘s case is binding upon all
subsequent judgments passed by the Lesser Bench of the Hon’ble
Supreme Court and all High Courts in India.
31. The strength of Bench in the Uma Devi‘s Case was five.
Hence, any deviation of the proposition laid down from the said
judgment by any subsequent Bench of Lesser Strength was heavily
criticised by the Hon’ble Supreme Court in a judgment passed in
Official Liquidator Vs. Dayanand and Others19. The said
proposition of law as framed by the Hon’ble Supreme Court in Uma
Devi‘s case has been reiterated by the Hon’ble Supreme Court in a
most recent judgment passed in the case of Ganesh Digamber
Jambhrunkar & Ors. Vs. The State of Maharashtra & Ors.20
where the Hon’ble Supreme Court held as follows: –
“The issue with which we are concerned in this petition
is as to whether by working for a long period of time on
contractual basis, the petitioners have acquired any
vested legal right to be appointed in the respective posts
on regular basis.
19
(2008) 10 SCC page 1 (paragraphs 77 to 83, 90 to 92)
20
2023 SCC OnLine SC 1417
2025:CHC-AS:1246
22We appreciate the argument of the petitioners
that they have given best part of their life for the said
college but so far as law is concerned, we do not find
their continuous working has created any legal right in
their favour to be absorbed. In the event there was any
scheme for such regularization, they could have availed
of such scheme but in this case, there seems to be none.
We are also apprised that some of the petitioners have
applied for appointment through the current recruitment
process. The High Court has rejected their claim mainly
on the ground that they have no right to seek
regularization of their service. We do not think any
different view can be taken.”
32. Accordingly, the petitioner does not have any legal right to be
absorbed by the respondent no. 3 as such, the writ petition is liable
to be dismissed.
33. Considering the rivals arguments and submissions made by
the respective parties and on perusal of the record, this Court finds
the writ petitioner is praying for regularisation of her service in the
post of Secretarial Assistant at IIM-C though her tenure of service
ended on 25.12.2018 and thereby fix scale of pay and grant all
admissible service benefits along with the arrears as regular employee
2025:CHC-AS:1246
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of the concerned institution forthwith from the date of joining i.e.
December, 2007.
34. Before entering into the merits of this case, this Court would
like to deal with the judgments relied by the respective parties in so
far as to the regularisation of service. It would be appropriate to deal
with the judgment passed by the Hon’ble Supreme Court by a larger
Bench in Secretary, State of Karnataka and Others Vs. Umadevi
(3) and Others21 with regard to issue of regularisation of service on
the ground of continuing service for a long period. The Hon’ble
Supreme Court held in the said judgment that a temporary employee
or a casual wage worker is continued for a time beyond the term of
his appointment, he would not be entitled to be absorbed in regular
service or made permanent, merely on the strength of such
continuance, if the original appointment was not made by following a
due process of selection as envisaged by the relevant rules.
(Emphasis supplied)
35. It was further held that it is not open to the court to prevent
regular recruitment at the instance of temporary employees whose
21
(2006) 4 SCC 1
2025:CHC-AS:1246
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period of employment has come to an end or of ad hoc employees who
by the very nature of their appointments do not acquire any right. It
is not as if the person who accepts an engagement either temporary
or casual in nature, is not aware of the nature of his employment. He
accepts the employment with open eyes. It may be true that he is not
in a position to bargain–not at arm’s length–since he might have
been searching for some employment so as to eke out his livelihood
and accepts whatever he gets. But on that ground alone, it would not
be appropriate to jettison the constitutional scheme of appointment
and to take the view that a person who has temporarily or casually
got employed should be directed to be continued permanently. By
doing so, it will be creating another mode of public appointment
which is not permissible. If the court were to void a contractual
employment of this nature on the ground that the parties were not
having equal bargaining power, that too would not enable the court to
grant any relief to that employee. A total embargo on such casual or
temporary employment is not possible, given the exigencies of
administration and if imposed, would only mean that some people
who at least get employment temporarily, contractually or casually,
would not be getting even that employment when securing of such
employment brings at least some succour to them. After all,
2025:CHC-AS:1246
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innumerable citizens of our vast country are in search of employment
and one is not compelled to accept a casual or temporary
employment if one is not inclined to go in for such an employment. It
is in that context that one has to proceed on the basis that the
employment was accepted fully knowing the nature of it and the
consequences flowing from it.
(Emphasis supplied)
36. It was further held that the wide powers under Article 226 of
the Constitution are not intended to be used for a purpose certain to
defeat the concept of social justice and equal opportunity for all,
subject to affirmative action in the matter of public employment as
recognised by our Constitution. It is time that the courts desist from
issuing orders preventing regular selection or recruitment at the
instance of such persons and from issuing directions for continuance
of those who have not secured regular appointments as per
procedure established. The passing of orders for continuance tends to
defeat the very constitutional scheme of public employment. It has to
be emphasised that this is not the role envisaged for the High Courts
in the scheme of things and their wide powers under Article 226 of
the Constitution are not intended to be used for the purpose of
perpetuating illegalities, irregularities or improprieties or for scuttling
2025:CHC-AS:1246
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the whole scheme of public employment. Its role as the sentinel and
as the guardian of equal rights protection should not be forgotten.
(Emphasis supplied)
37. Appointment made without following due process or the
rules for appointment did not confer any right on the appointee and
that the Court cannot direct their absorption or regularisation or re-
engagement or making them permanent. However, finally the Hon’ble
Supreme Court also held that the cases where irregular appointments
(not illegal appointments) as explained in S.V. Narayanappa [(1967) 1
SCR 128 : AIR 1967 SC 1071] , R.N. Nanjundappa [(1972) 1 SCC 409
: (1972) 2 SCR 799] and B.N. Nagarajan [(1979) 4 SCC 507 : 1980
SCC (L&S) 4 : (1979) 3 SCR 937], of duly qualified persons in duly
sanctioned vacant posts might have been made and the employees
have continued to work for ten years or more but without the
intervention of orders of the courts or of tribunals. The question of
regularisation of the services of such employees may have to be
considered on merits in the light of the principles settled by the Court
in the cases above referred to and in the light of the judgment. In that
context, the Union of India, the State Governments and their
instrumentalities should take steps to regularise as a one-time
measure, the services of such irregularly appointed, who have worked
2025:CHC-AS:1246
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for ten years or more in duly sanctioned posts but not under cover of
orders of the 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 process must be set in
motion within six months from the date. The Hon’ble Supreme Court
also clarify that regularisation, if any already made, but not sub
judice, need not be reopened based on this judgment, but there
should be no further bypassing of the constitutional requirement and
regularising or making permanent, those not duly appointed as per
the constitutional scheme.
(Emphasis supplied)
38. The Hon’ble Supreme Court directed the Union of India, the
State Governments and their instrumentalities should take steps to
regularise as a one-time measure, the services of
such irregularly appointed, who have worked for ten years or more in
duly sanctioned posts; (2) there should be no further by passing of
the constitutional requirement and regularising or making
permanent, those not duly appointed as per the constitutional
scheme in the case of Uma Devi (supra).
2025:CHC-AS:1246
28
39. In another judgment relied by the petitioner in the case of
Jaggo v. Union of India22, recognized the indispensable nature of
long-serving employees’ work and condemned the misuse of
temporary employment labels for roles that are essential and
recurring. The judgment affirmed that even “irregular” appointments,
if not “illegal”, warrant regularization under the principles established
in the Uma Devi‘s case.
40. In Jaggo Vs. Union of India and Others, the Hon’ble
Supreme Court held in paragraph nos. 26, 27 and 28 as under: –
“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 the22
2024 SCC Online SC 3826
2025:CHC-AS:1246
29judgment 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 fairness 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.
2025:CHC-AS:1246
30
28. In view of the above discussion and findings, the
appeals are allowed. The impugned orders passed by
the High Court and the Tribunal are set aside and the
original application is allowed to the following extent:
i. The termination orders dated 27.10.2018 are
quashed;
ii. The appellants shall be taken back on duty forthwith
and their services regularised forthwith. However, the
appellants shall not be entitled to any pecuniary
benefits/back wages for the period they have not
worked for but would be entitled to continuity of services
for the said period and the same would be counted for
their post-retiral benefits.”
41. Upon careful perusal of the aforesaid judgments, it is clear
and explicit that temporary, casual or contractual employees of
irregular appointments, who were engaged in duly sanctioned post
and had served continuously for a decade should be considered for
regularisation.
42. In the present case, it is admitted fact that the writ petitioner
was initially appointed as Secretarial Assistant on a contractual basis
for a period of two years from the date of her joining. The said
appointment would be extended further based on satisfaction of her
2025:CHC-AS:1246
31
performance and as per requirement of Institution. Emolument was
fixed at a consolidated salary of Rs.12,000/= per month. Petitioner
joined in the service on 26th December,2007 and has served as
Secretarial Assistant for more than a decade without any break and
any adverse remark. However, her appointment was purely temporary
basis and was extended time to time. She has drawn lastly a
consolidated emolument of Rs.36,500/= without any terminal
benefits like gratuity, provident fund, leave encashment etc.
43. Lastly, a letter of appointment was issued freshly/re-engaged
the petitioner on 16th August, 2016. Such engagement was given
effect from January 01, 2018 upto December 31,2018 by allowing
consolidated emolument of Rs. 36,500/- per month with the
condition for enhancement upto 8% and payment of other statutory
benefits payable as per the institution’s rules. According to the
petitioner there was no scope for re-engagement against the
sanctioned vacant post for which the Petitioner was appointed
through a valid selection process as per the decision and approval by
the concerned authority as such Petitioner claims pay protection and
regularisation of service for continuance of prolonged service.
2025:CHC-AS:1246
32
44. Feeling aggrieved, the writ petitioner challenged the legality
and validity of the communication for re-engagement dated
16.08.2018 by filing Writ petition being Writ Petition No. 24205/2018
and the same was disposed of vide order dated 13.12.2018 with
aforesaid direction.
45. The Petitioner submitted her representation on 14.12.2018
praying for permanent absorption to the post of Secretarial Assistant
in pursuant to the aforesaid order of Co-ordinate Bench of this court.
Ultimately, her prayer was turned down and decision of the BOG of
the IIMC was communicated with eight reasons and same has been
challenged by the Petitioner before this court accordingly the same is
subject matter of decision.
46. Affidavit-in-opposition has been filed by Respondent no.3,4,5
and 6 denying all allegations whatsoever made in the Writ Petition
and further contended therein that post of Secretarial Assistant was
not against sanctioned post. Such appointment was purely on a
contractual basis without following the recruitment rules though the
respondents admitted that an advertisement for recruitment was
published for the post of Secretarial Assistant at “Timesascent” on
2025:CHC-AS:1246
33
19.09.2007 inviting applications from the eligible candidates without
reservation for reserved category candidates as mandated in the
reservation policy of Government of India. The maximum age bar was
40 years but petitioner was given appointment even crossing 48 years
of age as she was working previously therein through outsourced
agency. However, she was no longer eligible for the post as per
advertisement. Therefore, her appointment was neither irregular or
regular appointment. It was just under mutually agreed terms but
purely contractual basis and she was fully aware about the
consequences in future. Her appointment was on the basis of
relaxation of age bar as such appointment can by no imagination be
characterized as regular and/or irregular.
47. The contractual engagement of the writ Petitioner was renewed
on revised emoluments on expiry of each term on the self-same terms
without any demur or protest or claim. Suddenly, Petitioner
submitted representation for absorption in service on 14.12.2018 for
the first time in terms of the liberty granted by the Co-ordinate Bench
just before 11 days of her term ended. However, there was/is no
scope to regularise or to absorb in service since Petitioner’s
engagement was on the concession of the IIMC and not by regular
2025:CHC-AS:1246
34
appointment following the recruitment rules and further the extended
contract came to end on December 25, 2018 and all dues were
settled.
48. This Court has gone through a judgment passed in Nihal
Singh and Others (supra), where the Hon’ble Supreme Court clearly
held that there is no justification for the respondent to take a defence
that after permitting the utilisation of service of the petitioner and to
say that there is no sanctioned post to absorb the writ petitioner.
Sanctioned posts do not fall from the heaven. The respondent has to
create them by conscious choice on the basis of some rational
assessment of the need.
49. It is apparent from the service of the writ petitioner that
there was essential for service of Secretarial Assistant in the
Institution for a long period despite the IIMC did not take any step to
seek or create the sanctioned post of the Secretarial Assistant.
50. It reveals from the notification that an application of total 6
Secretarial Assistant posts (contractual) was invited from the eligible
candidates. The eligibility criteria for Upper age limit were below 40
2025:CHC-AS:1246
35
years with other qualifications as stipulated in the said notification.
The posts were approved by the Ministry of Human Resource
Development with fixed emoluments of Rs. 12,000/= per month as
per the request and proposal of IIMC. However, no Sanctioned post
was created as per the Rules till 2018. Petitioner was appointed as
Secretarial Assistant in view of the said notification though she was
above 40 years on the basis of her own request as she was working
therein earlier through outsourced agency. However, without fulfilling
the eligibility criteria to say that appointment was neither regular nor
irregular but it was illegal or back door entry. At the time of
appointment, her age was 48 years but the IIMC has given her
appointment without fulfilling the eligibility criteria as per notification
and Petitioner was well aware about the said fact.
51. This Court is of the considered view that such appointment
was clearly a violation of the notification of recruitment. The writ
petitioner was well-aware about the consequences as her
appointment was purely on a contractual basis and the same was
time to time extended without any demur or objection or any claim.
She had filed a writ petition challenging the appointment letter dated
16.08.2018 thereby she was re-engaged with effect from January 01,
2025:CHC-AS:1246
36
2018 upto December 31, 2018 and while disposing of the said writ
petition, the Co-Ordinate Bench has given liberty to apply for
regularisation of her service which was turned down on the ground
that she is not eligible for regularisation as the post was not against
the sanctioned post. This court does not find any substantive
evidence that the post was sanctioned by the concerned authority. It
was only an arrangement in place of Stenographers as per request
and proposal of IIMC.
52. None of the judgments relied by the Petitioner are applicable
in the present case. Rather the Hon’ble Supreme court in Uma Devi
(Supra) case has specifically held in paragraph 43 as follows:
“43. Thus, it is clear that adherence to the rule of
equality in public employment is a basic feature of our
Constitution and since the rule of law is the core of
our Constitution, a court would certainly be disabled
from passing an order upholding a violation of Article
14 or in ordering the overlooking of the need to comply
with the requirements of Article 14 read with Article
16 of the Constitution. Therefore, consistent with the
scheme for public employment, this Court while laying
down the law, has necessarily to hold that unless the
2025:CHC-AS:1246
37appointment is in terms of the relevant rules and after
a proper competition among qualified persons, the
same would not confer any right on the appointee. If it
is a contractual appointment, the appointment comes
to an end at the end of the contract, if it were an
engagement or appointment on daily wages or casual
basis, the same would come to an end when it is
discontinued. Similarly, a temporary employee could
not claim to be made permanent on the expiry of his
term of appointment. It has also to be clarified that
merely because a temporary employee or a casual
wage worker is continued for a time beyond the term
of his appointment, he would not be entitled to be
absorbed in regular service or made permanent,
merely on the strength of such continuance, if the
original appointment was not made by following a
due process of selection as envisaged by the relevant
rules. It is not open to the court to prevent regular
recruitment at the instance of temporary employees
whose period of employment has come to an end or of
ad hoc employees who by the very nature of their
appointment, do not acquire any right. The High
Court’s acting under Article 226 of the Constitution,
should not ordinarily issue directions for absorption,
regularisation, or permanent continuance unless the
recruitment itself was made regularly and in terms of
the constitutional scheme. Merely because an
employee had continued under cover of an order of
2025:CHC-AS:1246
38the court, which we have described as “litigious
employment” in the earlier part of the judgment, he
would not be entitled to any right to be absorbed or
made permanent in the service. In fact, in such cases,
the High Court may not be justified in issuing interim
directions, since, after all, if ultimately the employee
approaching it is found entitled to relief, it may be
possible for it to mould the relief in such a manner
that ultimately no prejudice will be caused to him,
whereas an interim direction to continue his
employment would hold up the regular procedure for
selection or impose on the State the burden of paying
an employee who is really not required. The courts
must be careful in ensuring that they do not interfere
unduly with the economic arrangement of its affairs
by the State or its instrumentalities or lend
themselves the instruments to facilitate the by
passing of the constitutional and statutory
mandates”.
53. In Amarkant Rai v. State of Bihar, the Hon’ble Supreme
court particularly held in paragraph 11 as under:
“11. Elaborating upon the principles laid down in
Umadevi (3) case and explaining the difference
between irregular and illegal appointments in State
2025:CHC-AS:1246
39of Karnataka v. M.L. Kesari, this Court held as
under: (M.L. Kesari case, SCC p. 250, para 7)“7. It is evident from the above that there is an
exception to the general principles against
‘regularisation’ enunciated in Umadevi (3), 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 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.”
2025:CHC-AS:1246
40
54. Consequently, this Court does not find any illegality in the
rejection of her representation dated 14.12.2018, as her engagement
had ended on 25th December, 2018 and no further extension was
granted by the IIMC. Moreover, her appointment was apparently
illegal and not made against sanctioned post. Therefore, the order
rejecting her prayer warrants no interference. Accordingly, the
judgments referred by the learned counsel for the petitioner, most of
them are based primarily on the principles laid down in Uma Devi’s
case (supra) are no manner applicable in the present case, as the
appointment was neither made in accordance with recruitment rules
nor against a sanctioned post.
55. In the light of above discussion, this writ petition being WPA
9463 of 2019 is, thus, dismissed without any order as to costs.
56. Interim order, if any, stands vacated.
57. All parties shall act on a server copy of this judgment
uploaded from the official website of High Court at Calcutta.
2025:CHC-AS:1246
41
58. Urgent photostat certified copy of this judgment, if applied
for, is to be given to the parties on priority basis on compliance of all
legal formalities.
(Ajay Kumar Gupta, J)
P.A/P.Adak
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