Calcutta High Court (Appellete Side)
Kausik Ghosh & Ors vs The State Of West Bengal & Ors on 21 June, 2023
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IN THE HIGH COURT AT CALCUTTA
CIVIL APPELLATE JURISDICTION
APPELLATE SIDE
MAT 163 of 2021
+
IA NO:CAN/1/2021
Kausik Ghosh & Ors.
Vs.
The State of West Bengal & Ors.
Before: The Hon'ble Justice Arijit Banerjee
&
The Hon'ble Justice Apurba Sinha Ray
For the Appellants : Mr. Samim Ahammed, Adv.
Ms. Saloni Bhattacharya, Adv.
Ms. Ambiya Khatun, Adv.
For the KMC : Mr. Alak Kumar Ghosh, Adv.
Mr. Subhrangsu Panda, Adv.
Judgment On : 21.06.2023
Apurba Sinha Ray, J. :-
Factual Matrix
1. According to the appellants/petitioners they are all working as
Laboratory Technicians on contractual basis against sanctioned vacancies
2
during exigency of the Kolkata Municipal Corporation. The entry of the
appellants into service was on the basis of walk-in interview in the year
2010. The said walk- in- interview was taken on the basis of a public
advertisement. Accordingly, the petitioners were engaged initially on
contractual basis for a period of six months and thereafter the period
of engagement was extended from time to time. The petitioners are still
working in the said capacity. The respondents are obliged to regularize the
service of the petitioners. The Municipal authorities by taking advantage of
the dominant position as employer imposed upon the petitioners the
condition of not making any claim for regularization at the time of their
initial appointment.
2. The West Bengal Municipal Service Commissioner at the instance of
the Kolkata Municipal Corporation issued an advertisement dated
12/8/2020 for Recruitment Examination 2020 for the post of Medical
Officer (General) and Laboratory Technician (Grade III). The advertisement
fixed the upper age limit at 40 years for general candidates with relaxation
only for reserved category candidates. The Writ Petitioners prayed for
restraining the Municipal Authorities from removing the petitioners from
service and/or for staying the operation of the advertisement dated 12/ 8/
2020.
3. The Kolkata Municipal Corporation being the respondent No. 2has
pointed out that admittedly the appellants/ petitioners were engaged as
laboratory technicians on contractual basis through walk- in- interview as
advertised. The petitioners did not raise any objection to the process of the
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engagement undertaken. It cannot be denied that in the matter of
contractual engagement service is governed by the terms and conditions of
engagement as offered to them. One of the terms and conditions of the offer
was as follows:
"(9) Undertaking to be given at the time of joining no
claim for regularization or permanent absorption
apartment in the Kolkata Municipal Corporation in the
post of Laboratory Technician would be made in future.''
3.1. The petitioners duly accepted the said condition of offer and submitted
respective undertakings to that effect at the time of joining the service and
they did not raise any objection to the terms and conditions of the offer and
did not raise the issue of regularization until the date of issuance of the
advertisement on 12/08/2020. The statute does not provide for any scope to
regularize such appointment in the permanent post which is to be filled up
through Municipal Service Commission. The walk-in- interview for
engagement in service cannot and should not be equated with proper
recruitment process and/or the Constitutional Scheme for appointment to
any sanctioned post on regular basis.
4. There is no mode of recruitment under the law and/or regulation by
way of regularization of contractual service of the incumbents. In the event
the appointment is made in total disregard of the Constitutional Scheme as
also the Recruitment Rules by the employer, the recruitment would be an
illegal one. There may be cases when although substantial compliance with
the Constitutional Scheme as also the Rules have been made, the
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appointment may be irregular in the sense that some provisions of such
Rules might not have been adhered to.
5. On the recommendation of the Mayor-in -Council dated 27/03/ 1992
the KMC at its meeting dated 29/05/1992, approved, the General
Regulation to the effect that "notwithstanding anything contained in any
Recruitment Regulation for "C" and "D" categories of posts, Municipal
Service Commission acted as an agency for direct recruitments, if any such
vacancy is referred to by the competent appointing authority for filling up
posts by direct recruitment." The said regulation was made in consonance
with the relevant provisions of the KMC Act 1980. The petitioners are not
inclined to participate in the selection process for appointment on a regular
basis in the permanent sanctioned posts. The petitioners never expressed
any such inclination and prayed for relaxation of age bar under
advertisement when asked for the same by the Hon' ble Court at the time of
initial submission of the writ petition.
Submission from the Bar
6. The learned Counsel for the appellants has submitted that the
recruitment of the appellants was not illegal. The Hon'ble Supreme Court
has explained the difference between irregular and illegal appointment in
the case of State of Karnataka and other versus M.L. Kesari and others
(2010) 9 SCC 247. The learned Counsel has submitted that the Hon'ble
Single Judge has erred in law by observing that the appointments of the
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appellants/ petitioners were illegal. On the strength of such observation, the
Hon'ble Single Judge did not issue any writ of Mandamus for regularization
of the services of the appellants/petitioners.
7. According to the learned Counsel, in a similar factual scenario, the
Hon'ble Central Administrative Tribunal, Principal Bench in Ms. Harleen
Kaur & others versus North Delhi Municipal Corporation and others
directed regularization of Entomologists recruited to combat the menace of
malaria and dengue. The Hon'ble High Court of Delhi upheld the order of
the Tribunal. Subsequently, the Hon'ble Supreme Court also upheld the
order of the Tribunal by dismissing the special leave petition preferred by
the municipal corporation.
8. Non- regularization leads to discriminatory working conditions which
lead to violation of dignity of the person. The appellants discharged
their duties as Frontline workers during the COVID-19 pandemic. However
unlike their counterparts, they received less, despite similar types of
dispensation of duties. On death, none of the family members received even
a family pension.
In the current socio-economic scenario the employer has
unequal bargaining power and the respondent authority being a model
employer cannot be allowed to abuse such position. It cannot be allowed to
extract work from employees appointed irregularly during some exigency
and thereafter throw them out to the forces of the market when they are no
longer of employable age.
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9. Regularization Rules must be given pragmatic interpretation and if the
appellants have completed 10 years of service they should be regularized.
True purpose and intent of the judgment rendered in Uma Devi case was to
stop back door appointments in violation of Articles 14 and 16 of the
Constitution of India. Therefore, the said judgment is not a license for the
State to make contractual appointments against permanent vacancies and
thereafter exploit such employees by denying the benefits of their service.
10. Service conditions disentitling the appellants to make claim for
regularization is opposed to public policy against exploitation as
enshrined under Article 23 of the Constitution of India. Therefore, the same
is not an enforceable agreement in terms of Section 23 of Indian Contract
Act 1872. Thus, the appellants have an enforceable right for regularization
to prevent their exploitation.
11. In support of his contention the learned Counsel appearing for the
appellants has referred to the judicial decision reported in State of
Karnataka and other (para 7) (supra), one unreported decision passed by
the Central Administration Tribunal, Principal Bench, New Delhi in TA No.
352 of 2009 (paragraphs 17, 18, 26, 28, 31), the appellate court's order
passed in connection with the above matter on 20.11.2018, that is,
reported in AIR OnLine 2019 SC 1990 (New Delhi Municipal
Corporation Vs. Harleen Kaur and Others), the judgment dated
19.11.2020 passed by the Constitutional Court of South Africa in the
matter of Sylvia Bongi Mahlangu and Others Vs. The Minister of Labour
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and Others (paras 6, 56, 106, 108, 113), (1986) 3 SCC 156 (paras 102,
110, 111) (Central Inland Water Transport Corporation Limited and
Another Vs. Brojo Nath Ganguly and Another And Central Inland Water
Transport Corporation Limited and Another Vs. Tarun Kanti Sengupta
and Another), 2013 14 SCC 65 (paras 20, 22 and 37) (Nihal Singh and
Others Vs. State of Punjab and Others with Bhupinder Singh and Others
Vs. State of Punjab and Others),(2018) 8 SCC 238 (paras 4 to 7)
(Narendra Kumar Tiwari and Others Vs. State of Jharkhand and Others),
(2015) 8 SCC 265 (paras 2, 3, 13, 14) (Amarkant Rai Vs. State of Bihar
and Others), (2014) 4 SCC 583 (paras 35, 38, 42, 45, 47, 48 and 50)
(Amarendra Kumar Mahapatra and Other Vs. State of Orissa and
Others), (2006) 4 SCC 1 (paras 52 and 53) (Secretary, State of
Karnataka and Others Vs. Umadevi (3) and Others).
12. The learned Counsel appearing for the KMC has submitted that at the
time of appointment the appellants were engaged on the terms and
conditions of engagement as offered to them and one of such conditions
indicated that in case of their engagement on contractual basis they should
not claim for relaxation or permanent absorption in the KMC in the post of
Laboratory Technician. Therefore by virtue of such agreement the petitioners
are not at all entitled to get relief as prayed for. According to him the Hon'ble
Single Judge upon due consideration of the facts and circumstances of the
case as well as the reported judgments cited by the respective parties was
pleased to dispose of the writ petition without granting any relief as prayed
for. The Hon'ble Single Judge observed, inter alia, that the appointment
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shall be made only in accordance with the rules and not otherwise. The
executive powers can be exercised to fill in the gaps as a short term measure
and not in perpetuity. In the instant case the initial appointment of the
petitioners was not in accordance with the recruitment rules and as such
the prayers of the petitioners for regularization of service cannot be accepted
by the court and the same was rightly rejected.
13. According to the leaned Counsel, the appellants have no right under
the law to be engaged permanently as claimed. In support of his contention
the learned counsel has relied upon the decisions reported in Umadevi
(supra),(2008) 10 SCC 1 (Official Liquidator Vs. Dayanand and
Others),(2011) AIR SCW 4252 (Union of India and Others Vs. Arul Mozhi
Iniarasu and Others),(2006) 8 SCC 667 (State of MP and Others Vs.
Yogesh Chandra Dubey and Others), (2009) 7 SCC 205 (General
Manager, Uttaranchal Jal Sansthan Vs. Laxmi Devi and Others),2006 (2)
SCC 702 (MP Housing Board and Another Vs. Manoj Shrivastava), (2007)
1 SCC 575 (State of MP and Others Vs. Lalit Kumar Verma).
14. The learned counsel has further argued that as the appellants were
not appointed in terms of the applicable statutory rules, they are not
entitled to any regular scale of pay to any post. Moreover, the court cannot
pass any order directing the authority to regularize the services of the
appellants having regard to the Constitutional Bench decision in Uma Devi
(3) case. Having regard to the facts and circumstances of the case as well as
the law laid down in the reported cases this court would be pleased to
dismiss the appeal.
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Decision
15. The learned Single Judge has been pleased to reject the prayer of the
appellants, being the writ petitioners on the grounds, inter alia, that---
a) As the petitioners have been appointed contrary to law, accordingly their
appointments cannot be said to be a legal one. In view of the judgment
delivered by the Hon'ble Supreme Court in the matter of Uma Devi (supra),
KMC is not obliged to regularize their engagement.
b) The apprehension of the appellants that KMC will terminate their services
is unfounded.
c) The petitioners at the time of their initial appointment had to give an
undertaking that they will not claim regularization or permanent absorption in
the service in future. The petitioners are bound by the terms and conditions of
their letter of engagement.
d) The nature of work and the post may be the same, but that does not mean
that the service condition of the two sets of employees, one appointed through
a regular process initiated by the Municipal Service Commission and the other
by way of an advertisement by KMC, is the same.
e) In Service jurisprudence, the status of a contractual employee and that of a
permanent employee is distinctly different. The financial benefits in respect of
the two sets of employees are completely diverse. Permanent employees enjoy
certain protection in service which the contractual employees don't.
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Regularization of the engagement of contractual employees have varied
ramification.
f) The Supreme Court on several occasions has deprecated the practice of the
Courts to pass order of regularization of employees engaged dehors the
recruitment rules. Admittedly, in the instant case the engagement of the
petitioners was made without following the prescribed recruitment rules. KMC
without routing the selection process through the Municipal Service
Commission adopted a shortcut method and itself published an advertisement
inviting applications from eligible candidates. The petitioners applied pursuant
to the advertisement published by the KMC. Though the petitioners are reeling
under the impression that the recruitment was made in a regular manner,
through an open selection, but fact remains that the said selection was not
made in accordance with the recruitment rules and accordingly the same
cannot be said to be a valid one.
g) It is always open for the KMC to engage employees on contractual basis in
times of need and on emergent basis. Areas with perennial nature of work
ought to be manned by regular employees. The health clinics run by the KMC
function on a regular basis. They are not meant to be run on temporary
occasions. The need being perennial, KMC ought to have engaged employees
through the regular recruitment process. However, since there is no bar to
engaging employees on contractual basis KMC adopted the shortcut method.
h) Contractual employees cannot claim regularization on the basis of their long
period in service. It is settled law that regularization is not a mode of
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recruitment. In view of the conditions mentioned in the offer letter of
engagement and the undertaking given, the petitioners cannot claim
regularization/ absorption in regular service in KMC. Any order passed in
favour of the petitioners, for regularization, will be contrary to the provisions of
Articles 14 and 16 of the Constitution.
16. However, it appears that both the learned counsel of the parties and the
learned Single Judge have placed reliance on the exceptions as laid down in
Para 53 of the Uma Devi's case (supra) to buttress their standing. Para 53
of the said judgment is required to be perused and the same is set out
hereunder :
"53. One aspect needs to be clarified. There may be
cases where irregular appointments (not illegal
appointments) as explained in S.V Narayanappa, R.N.
Nanjundappa and B.N. Nagarajan and referred to in Para
15 above, 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 regularization of services of such employees
may have to be considered on merits in the light of the
principles settled by this Court in the cases above referred
to and in the light of this judgment. In that context, 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 ten years or more in duly sanctioned
posts but not under cover of orders of the courts or of
tribunals and should further ensure regular recruitments
are undertaken to fill those vacant sanctioned posts that
required 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 this
date. We also clarify that regularization, if any already
made, but not sub judice , need not be reopened based on
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this judgment, but there should be no further bypassing of
the constitutional requirement and regularizing or making
permanent, those not only duly appointed as per the
constitutional scheme."
17. From the said paragraph, it appears that the Hon'ble Supreme Court
has been pleased to lay down the exceptions to the main principle
elaborated in the body of the said judgment, and in the second part of the
said paragraph, the Hon'ble Supreme Court has further laid down the
mandatory duties of the Union Government, State Governments and their
instrumentalities. There are, in fact, two types of duties.
18. First, 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 ten years or more
in duly sanctioned posts but not under cover of orders of the courts or of
tribunals.
19. Secondly, the Union of India, the State governments and their
instrumentalities should further ensure regular recruitments are
undertaken to fill those vacant sanctioned posts that are required to be filled
up in cases where temporary employees or daily wagers are being now
employed.
20. What we have understood from the above that by the first direction
the authorities are bound to regularize the eligible candidates within six
months from the date of judgment i.e., 10/04/2006 and from the second
direction it is incumbent upon the said authorities and their
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instrumentalities that they shall undertake regular recruitment process to
fill up vacant sanctioned posts.
21. From the materials on record in the present case it transpires that the
appellants were called upon to attend walk-in-interview in the year 2010
and the said walk-in-interview was taken on the basis of an open
advertisement. Now the question is when the Hon'ble Supreme Court by its
decision in Uma Devi (supra) delivered in 2006, has clearly directed the
State Governments and its instrumentalities that they should ensure that
regular recruitments are undertaken to fill up vacant sanctioned posts
where temporary employees are being employed, could KMC bypass such
direction in the year 2010? The said direction necessarily means that the
vacant sanctioned posts cannot be filled up by temporary employees. In
spite of such direction the KMC engaged the appellants as laboratory
technicians on contractual basis in the year 2010. It is true that the
Corporation is claiming that they were not engaged in respect of sanctioned
vacant posts.
22. But when there is clear direction of the Hon'ble Apex Court for
appointment of regular employees in the sanctioned vacancies instead of
temporary workers, could the Corporation engage temporary workers in
place of regular employees and compel them to do the same nature of work
which the regular employees of sanctioned vacancies are supposed to do, at
a lesser pay? Exactly that done here. The KMC engaged temporary workers
at a lesser pay and asked them to do the same job which a regular employee
in a sanctioned post would do. Therefore the KMC gets double bonanza by
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adopting such practice. They get similar services of a regular employee from
the contractual employees and they have to pay less for that. To bypass
Uma Devi, the KMC has taken the plea that such engagement was not in
sanctioned vacant posts but they engaged them for the time being. As such
the observation of the Learned Single Judge that "it is always open for the
KMC to engage employees on contractual basis in terms of need and on
emergent basis. Since there is no bar to engage employees on contractual
basis, KMC adopted the short cut method", goes against the direction of the
Hon'ble Supreme Court in Uma Devi (supra). Though the Learned Single
Judge has pointed out the KMC's power of engaging employees on
contractual basis by adopting "short cut method", the Learned Judge did
not refer to any specific provision in the relevant Recruitment Rules showing
that KMC is authorized to adopt such 'short-cut method".
23. The observation that "in the instant case the engagement of the
petitioner was made without following the prescribed recruitment rules and
KMC without routing the selection process through Municipal Service
Commission adopted a short cut method and itself published an
advertisement inviting applications from eligible candidates" is required to
be scrutinized hereunder.
24. It appears that the relevant advertisement which was published in the
year 2010 was as hereunder:-
"THE KOLKATA MUNICIPAL CORPORATION 5.S.N. BANERJEE ROAD, KOLKATA-700
072
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Walk-in Interview for contractual appointments of LABORATORY TECHNICIANS
(Contractual basis),
Venue of Interview: The Town Hall, Kolkata (Beside the Kolkata High Court)
1. Post-LABORATORY TECHNICIANS (75)
Date of Interview/ Reporting Time: 05/04/2010/10. a.m. Remuneration: Rs 5000/-
p.m. (Consolidated).
Eligibility
Essentials
i) Passed Higher Secondary Examination or its equivalent with Physics,
Chemistry and Biology.
ii) Two years diploma course in Laboratory Technology recognized by the Govt. of
West Bengal
Desirable
i) One year training after acquiring diploma in Laboratory Technology recognized
by the Govt. of West Bengal, in any Government Hospital or in a Clinical
Establishment licensed under the West Bengal Clinical Establishment Rules, 2003: or
ii) A Post-Graduate diploma in Laboratory Technology from any recognized
University.
Age: Not more than 37 years as on 01.01.2010.
___________________________________________________________________________
Interested candidates are requested to report for interview with an application
addressed to the Municipal Commissioner, Kolkata Municipal Corporation, 5. S.N.
Banerjee Road, Kolkata-700 013, Bio-data and Photo identity proof along with all
testimonials/documents in original and a set of attested copes thereof. An attested
photograph shall also be kept ready.
Interviews, if necessary may continue on the next working day. No new applications
will be entertained on the extended date(s).
The KMC reserves the right to change/modify any/all of the above conditions.
Municipal Commissioner"
25. From the said advertisement it appears that the essential qualification
for said posts are Higher Secondary Examination or its equivalent
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examination with subjects like physics, chemistry, biology and secondly two
years diploma course in the laboratory technology recognized by the
Government of West Bengal. The desirability of the employer in selecting
candidates by virtue of the said advertisement was that the candidates
should have one year training after acquiring diploma in laboratory
technology recognized by Government of West Bengal, in any government
hospital or in a clinical establishment licensed under the West Bengal
Clinical Establishment Rules, 2003 or a post graduate diploma in laboratory
technology from any recognized university. If that be the requirement of
eligibility of the candidates, it can be safely said that as it was an open
advertisement seeking candidature from eligible candidates as per the
conditions mentioned therein, the same provides equal opportunity to all the
eligible candidates. In other words, it cannot be said in any way that the
advertisement was made for any particular category of people or the said
advertisement is restricted to any class of persons. Therefore the
advertisement was open for all, providing opportunity to every eligible
candidate to appear in the relevant walk-in-interview and as such it cannot
be said that there was any attempt to bypass the constitutional requirement
as envisaged in our constitutional scheme.
26. It would be appropriate at this stage to compare the conditions of the
advertisement which was published on August 12, 2020 for which the
relevant writ petition was filed from the side of the appellants.
27. The advertisement dated August 12, 2020 is set out hereunder:-
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WEST BENGAL MUNICIPAL SERVICE FAX/PHONE: 2286-0052
COMMISSION 149, A.J.C. BOSE ROAD,
KOLKATA-700 014 WEBSITE: www.mscwb.org E-
MAIL: [email protected]
---------------------------------------------------------------------------------------------
Advertisement No. 14 of 2020.
Recruitment Examination, 2020 for the post of Medical Officer (General) &
Laboratory Technician (Grade-III) under Kolkata Municipal Corporation.
On-line applications are invited through our website www.mscwb.org from the
Citizens of India for recruitment to the post of Medical Officer (General) &
Laboratory Technician (Grade-i) under Kolkata Municipal Corporation on and
from 13.08.2020.
Sl. Name of the Post No. of Category Scale of Pay Age as an
No. Vacancy Wise & Grade
Vacancy
Pay
Position
1. Medical Officer 63 S.C.-11 Pay Level - 18-27 yrs
16 of the
(General) S.T.-10 Pay Matrix
of ROPA
O.B.C. (A)- 2019
UR-08 Pay
Level-16 of
the 18-37
yrs. Pay
Matrix of
ROPA 2019,
01.01.2020
0.B.C. (B)-
07 U.R.
(PWD)-03
(01 Tor
Blindness
Low Vision,
for hearing
Impaired,
01 for
Locomotor
Disability/
Cerebral
Palsy
Minimum Educational Qualification
Essential: MBBS degree from a recognized University and duly registered in Medical
Council.
Desirable: a) Preference will be given to candidates possessing post graduate
qualification like DPH MD (Community Medicine) / MD (PSM) from a recognized
University. b) 1 One) year experience in practice of Medicine/working experience in
the field of Public Health.
Age: Lower and Upper age limit are 18 years and 37 years respectively as on 1
January 2020 UPPER AGE RELAXATION UP TO 5 (FIVE) YEARS IS ADMISSIBLE
ONLY TO S.C. & ST. CANDIDATES AND UP TO 3 YEARS TO 0.B.C. (A & B)
CANDIDATES OF WEST BENGAL
Upper age limit for recruitment of Physically Challenged persons to State Government
Services and Posts shall be 42 years.
Age limit can be relaxed for those who have served on contractual basis under
Kolkata Municipal Corporation to an extent equivalent to the period of such full time
contractual engagement, subject to a maximum of 3 years for the post of Medical
Officer (General).
Sl Name of the Post No. of the Category Scale Of Age as on
No. vacancy wise Scale of Pay & 01.01.2020
Pay & Grade
Pay
Pay Level
- 6 of the
pay
matrix of
ROPA
2 Laboratory 18 U.R.-07 18-40 yrs
Technician (Grade- U.R. (Ex -
III) Serviceman) -
SC.-05
ST.-01
OBC (A) - 01
OBC(b) - 01
U.R. (PWD)-01
(for Locomotor
Disability
Cerebral
Palsy)
Minimum Educational Qualification
Essential:
1. Madhyamik Examination Pass from WBBSE or its equivalent.
2. A diploma/certificate as Laboratory Technician from recognized-Institution.
Lower and Upper age limit are 18 years and 40 years respectively as on 1 January,
2020. UPPER AGE RELAXATION UP TO 5 (FIVE) YEARS IS ADMISSIBLE ONLY TO
S.C. & S.T. CANDIDATES AND UP TO 3 YEARS TO O.B.C, (A & B) CANDIDATES OF
WEST BENGAL.
28. From a comparative study of the advertisement of the year 2010 and
that of 2020 inviting applications for appointment of laboratory technician
Grade-III (18 posts), it appears that the essential qualification of candidates
was higher in the advertisement of the year 2010 than the advertisement of
2020. It is also found that candidature was sought for from higher qualified
candidates in 2020 than the candidates in connection with advertisement of
2020. Therefore, there is no doubt that candidates having higher
qualification than the candidates in connection with advertisement No.14 of
2020 were appointed in the year 2010 on the basis of the walk-in-interview.
Therefore, the appointment of the appellants cannot be said to be illegal. It
is also found from such comparative study of the two advertisements that
the mode of appointment in respect of post of technician Grade-III by virtue
of advertisement of 2020 was either written test and interview or personality
test depending upon number of applications received. It is further found
from page no. 87 of the paper book that the West Bengal Municipal Service
Commission held direct personality test/interview for recruitment to the
post of laboratory technician (Grade-III) in connection with Advertisement
No. 14 of 2020, without holding any written test. It, therefore, goes to show
that the mode of appointment in 2010 and 2020 was also the same. In other
words, the mode of appointment which was adopted in the year 2020 was
more or less the same or akin to the year 2010 in connection with the
appointments of appellants though in different name, that is, walk-in-
interview. As such I do not find that the persons having higher qualification
than the appellants have been appointed or proposed to be appointed by
virtue of advertisement No. 14 of 2020 and further the mode of appointment
was same in respect of appointment of candidates in connection with both
the advertisements as aforesaid. Therefore, the observation of the Learned
Single Judge treating the appointment of regular employees in a higher
pedestal than the appointment of temporary employees including the
present appellants appears to be incorrect.
29. According to the Learned Single Judge, as the petitioners have been
appointed contrary to law, the Kolkata Municipal Corporation is not obliged
to regularize their engagement, in view of the judgment delivered by the
Hon'ble Supreme Court in the matter of Uma Devi (supra). Now, the question
arises as to who appointed the appellants in violation of law? From the
records it transpires that paragraph 53 of Uma Devi's case (supra) has
prohibited the State Government and its instrumentalities from appointing
temporary or contractual employees in the sanctioned vacant posts but the
Kolkata Municipal Authority without paying any heed to such direction
appointed the appellants as contractual workers. But when the question of
regularization arises, the Kolkata Municipal Corporation has taken shelter
behind the said case law of Uma Devi (supra) and has denied regularization
of such engagement of the appellants. Can Kolkata Municipal Corporation
blow hot and cold at the same time?
30. The Learned Single Judge has been pleased to comment that the
apprehension of the appellants that Kolkata Municipal Corporation will
terminate their services is unfounded but it appears that the appellants
being employed as contractual workers are apprehensive of their
termination and in my considered opinion such apprehension is certainly
reasonable and it cannot be said to be unfounded.
31. The Learned Single Judge has also observed that the appellants gave
an undertaking at the time of their initial appointment that they will not
claim regularization or permanent absorption in service in future and
therefore the appellants are bound by the terms and conditions of their
letter of engagement. If we peruse the relevant advertisement of the year
2010 we shall find that the said advertisement does not indicate about such
proposed undertaking to be given by the selected candidates at the time of
their initial appointment. There is no whisper in the said advertisement that
a separate contract containing terms and conditions was required to be
executed at the time of their appointment. There is no whisper in the said
advertisement that the employees cannot claim for regularization in future.
The question arises whether the Kolkata Municipal Corporation is entitled to
incorporate new conditions of service in the offer letter though such
essential conditions are not mentioned or indicated in the relevant
advertisement.
32. The observation of the Learned Single Judge that the nature of work
and the post may be the same but that does not mean that the service
condition of two sets of employees must be the same, has also gone against
the constitutional principle of equal pay for equal work. In STATE OF
PUNJAB AND OTHERS V. JAGJIT SINGH AND OTHERS, (2017) 1 SCC
148 the Supreme Court of India has been pleased to hold that the principle
of "equal pay for equal work" is also applicable to temporary workers
performing the same duties and responsibilities as regular employees. It is
fallacious to determine artificial parameters to deny fruits of labour. More so
in a welfare state, any act of paying less wages, as compared to other
similarly situated, constitutes acts of exploitative enslavement, emerging out
of domineering position of the State. Thus it was held by the Hon'ble
Supreme Court that temporary employees possessing requisite qualifications
and appointed against posts which were also available in the regular cadre,
performing similar duties and responsibilities as are being discharged by
regular employees holding same/corresponding posts were entitled to claims
wages at per with minimum pay scale of regular methods holding the same
posts. Therefore the distinction between regular and temporary employees
as envisaged in the impugned judgment on the basis of nature of work and
similarity in post does not find favour in the aforesaid judgment of the
Hon'ble Apex Court.
33. By relying on judicial precedents, the Learned Single Judge has rightly
and eloquently recorded that the Supreme Court on several occasions has
deprecated the practice of the court in passing order for regularization of
employees engaged dehors the recruitment rules. It is also the observation of
the Learned Single Judge that "admittedly in the instant case the
engagement of the petitioner was made without following the prescribed
recruitment rules. Kolkata Municipal Corporation without routing the
selection process through the municipal service commission adopted a
shortcut method and itself published an advertisement inviting applications
from eligible candidates". In my considered view, the Kolkata Municipal
Corporation could not have done so after emergence of the judicial decision
of Uma Devi (supra). Even if such rules for appointment of temporary
workers are there, but after emergence of the judicial decision as aforesaid
such rules have become obsolete. It is also important to mention another
observation of the Learned Single Judge "that though the petitioners are
reeling under the impression that the recruitment was made in a regular
manner, through an open selection but fact remains that the said selectionwas
not made in accordance with the recruitment rules and accordingly the same
cannot said to be a valid one." In my view if the Kolkata Municipal
Corporation does not follow its own Recruitment Rules and also the
direction of the Hon'ble Supreme Court, we cannot make the appellants
scapegoat for the wrongful acts of the Corporation.
34. Though the Learned Single Judge has been pleased to hold that it is
always open for KMC to engage employees on contractual basis in times of
need and emergent basis, such observation goes against the judicial dictum
passed in Uma Devi's case (supra).
35. The Learned Single Judge time and again, observed in the impugned
judgment that the KMC did not follow the prescribed recruitment rules at
the time of appointment of the appellants, and the KMC adopted a short-cut
method for appointing the appellants as Laboratory Technician on
contractual basis. It is also the observation of the Learned Single Judge that
"Areas with perennial nature of work ought to be manned by regular
employees. The health clinics run by the KMC function on regular basis. They
are not meant to be run on temporary occasions. The need being perennial,
KMC ought to have engaged employees through the regular recruitment
process. However, since there is no bar to engage employees on contractual
basis KMC adopted the shortcut method."
36. No challenge was thrown from the side of the KMC to such
observation of the Learned Single Judge. Therefore, from the above
observation, it transpires that the KMC itself did not follow the prescribed
recruitment rules at the time of appointment of the appellants, instead, it
adopted a "short-cut method".
Secondly, the nature of jobs in the health clinics run by the KMC is
perennial.
Thirdly, such jobs ought to be done by regular employees.
Fourthly, such perennial jobs in health clinics have now been performed by
the appellants who were and still are appointed on contractual basis.
Fifthly, according to the impugned judgment, as there is no bar to engaging
contractual employees, the KMC can engage contractual staff to perform
such perennial jobs, at a lesser pay.
37. The Learned Single Judge has elaborately discussed various case laws
to point out that the present law of the land does not support regularization
of temporary workers unless they are appointed in accordance with
prescribed recruitment rules. The observation of the Learned Single Judge
in this regard is absolutely correct and there is no iota of doubt that
regularization of temporary workers or the employees who are appointed on
contractual basis is not permitted under the present law. But at the same
time it also must be kept in mind that the temporary employees on the basis
of contractual services should not be engaged in perennial jobs and the KMC
should not be allowed to exploit the services of temporary workers in place
of regular employees for years together at a meagre pay. In this case the
appellants were engaged for a period of six months and thereafter their
services were extended from year to year and in this fashion their valuable
services were taken by the KMC for more than 10 years (the writ application
was filed in the year 2020). They were asked to perform perennial jobs
though they were appointed on contractual basis. According to Learned
Single Judge, such contractual staff can be engaged by the KMC to cope
with any emergency or exigency. But extension of their services from six
months to more than 10 years appears to be unconscionable. Had there
been any emergency at the time of their appointment, duration of
contractual period should have been shorter and in all probability, it would
have been much less than 10 years. It also appears that though their
services were taken by the KMC for more than 10 years, they were not
allowed to receive even minimum scale of pay in comparison with their
counter-parts in the sanctioned vacancies. The conduct of KMC in this
regard is not acceptable and they have compelled the appellants to perform
perennial jobs which are supposed to be done by the regular employees with
higher pay scale. The approach of the KMC is inhumane and cannot be
endorsed in a welfare State.
38. It is true that the in view of the present law of the land, we cannot
direct KMC to regularize the services of the appellants but the inhumane
attitude of the KMC should be deprecated. They have appointed temporary
workers on contractual basis not only beyond the prescribed recruitment
rules but also against the relevant direction of the Hon'ble Supreme Court.
From the records it transpires that the appellants have been performing
their duties satisfactorily and, therefore, in my view the KMC should take
the responsibility for such irregular appointment of the appellants beyond
the prescribed recruitment rules and direction of the Hon'ble Supreme
Court.
39. The Learned Single Judge was not properly assisted from this angle of
the case and the Learned Single Judge has failed to appreciate the injustice
caused to the appellants due to sheer incompetence of the KMC authorities.
Moreover, a cursory glance over the relevant advertisement no, 14/2020 will
further fortify this conclusion since it shows that though age relaxation for
the post of Medical Officer (General) was allowed for the Medical Officers
who have served on contractual basis under KMC, no such corresponding
age relaxation was provided for the laboratory technician who were already
on contractual services in the KMC. Therefore, the injustice to and
discrimination against the appellants are glaring and palpable. It is expected
that a Court of law should not allow the KMC, a model employer, to become
an unscrupulous employer. There is no reason for not extending the social
security schemes to the appellants who are performing their duties
satisfactorily at a lesser pay. We cannot shut our eyes to the services
rendered by the persons like the appellants during Covid-19 and other
emergent situations.
40. Considering all the aspects of the case in hand and also considering
the present law of the land we are constrained to hold that the prayer for
regularization of the services of the appellants cannot be allowed at this
stage. However, we direct that the present services of the appellants on
contractual basis cannot be terminated till they reach the age of 60 years
respectively without formulating some reasonable social security
scheme/beneficial scheme, etc for their benefit.
41. A question may arise that such prayer was not made in the writ
petition and therefore this court cannot grant such relief to the appellants.
But in my considered opinion the writ court can mould relief/reliefs in
favour of the petitioners/appellants at the final stage for the purpose of
doing complete justice. Moreover, in the writ application there was a prayer
which is as follows:-
"(i) to pass such order or further order or orders as
your Lordship may deem fit and proper."
In view of such prayer we do think that the relevant relief as moulded by
this Court can be extended to the appellants before us.
42. Accordingly the present appeal is allowed in part without any order as
to costs. The impugned judgment passed in WPA No. 6896 of 2020 on
08.01.2021 is modified to the above extent. The connected application is
also disposed of.
43. We also make it clear that this judgment should not be treated as
a precedent.
44. Urgent certified website copies of this judgment, if applied for, be
supplied to the parties subject to compliance with all the requisite
formalities
I agree.
(ARIJIT BANERJEE, J.)
(APURBA SINHA RAY, J.)
