Delhi High Court

Pooja Saxena vs Union Bank Of India & Ors. on 5 August, 2014

*     IN THE HIGH COURT OF DELHI AT NEW DELHI

+                   W.P.(C) 4056/2014


                                               Decided on : 05.08.2014
IN THE MATTER OF
POOJA SAXENA                                   ..... Petitioner
                              Through : Mr. V.P.S. Tyagi, Advocate

                        versus

UNION BANK OF INDIA & ORS.                ..... Respondents
                    Through : Mr. O.P. Gaggar, Advocate

CORAM
HON'BLE MS.JUSTICE HIMA KOHLI

HIMA KOHLI, J. (ORAL)

1. The present petition has been filed by the petitioner praying inter

alia that the respondent/Union Bank of India be restrained from

terminating her services in the capacity of a Customer Relationship

Executive (in short 'CRE') and further, the respondent/Bank be

directed to regularize her appointment relating back to the date of her

initial appointment.

2. Counsel for the petitioner submits that initially, the petitioner

was employed by the respondent/Bank as a CRE, vide letter of

appointment dated 16.6.2011 (Annexure P-4). The said appointment

was for a period of two years, expiring on 3.7.2013. Subsequently,

the contractual appointment of the petitioner was extended for a

period of one year, expiring on 3.7.2014. For claiming entitlement to

regularization, the petitioner relies on Clause 15 of the Recruitment

Policy of the respondent/Bank that deals with contractual

appointments and notes that the Bank may absorb the contractees on

regular full-time posts at such terms and conditions, with the prior

approval of the Board.

3. Counsel for the petitioner submits that the petitioner having

worked on a contractual basis with the respondent/Bank for a period of

three years, is entitled to be absorbed as a CRE on the post of Junior

Manager Scale-I and her appointment should relate back to her initial

date of appointment.

4. On 4.7.2014, when the present petition was listed for admission,

learned counsel for the respondent/Bank, who had appeared on

advance copy, had stated that the Recruitment Policy relied upon by

the petitioner, in particular para 15 thereof, cannot be implemented by

the Bank in view of the instructions issued by the Government of India

to the effect that regularization cannot take place in terms of the said

policy. In view of the aforesaid submission made by the counsel for

the respondent/Bank, the Bank was directed to file an affidavit placing

on record its stand.

5. Pursuant to the aforesaid order, a brief affidavit dated 9.7.2014

has been filed by the respondent/Bank, wherein it has been stated that

the Recruitment Policy referred to by the petitioner is not a rule of

regularization or absorption, but is purely a discretion vested with the

Bank's Board to meet exigencies of the Bank. It has been averred

that as far as the contractual employment of CREs is concerned, the

Board of the respondent/Bank was inclined to absorb some of the

CREs, who had been working in the Bank since the year 2008 and it

had even granted approval to that effect, vide resolution dated

8.7.2013. Subsequently, the Bank's Board had granted approval for

the absorption of suitable CREs appointed in the years 2011 and 2012

after completion of four years of contractual service. However, before

the said absorption could be given effect to, the Ministry of Finance,

Govt. of India had issued a direction to all the Banks that regular

employment in the Banks cannot be granted to the contractual

employees in terms of the decision rendered by the Constitution Bench

of the Supreme Court in the case of State of Karnataka vs. Umadevi,

reported as (2006) 4 SCC 1. Counsel for the respondent/Bank

particularly draws the attention of this Court to the Circular dated

10.12.2014 issued by the Ministry of Finance, Govt. of India to all

public sector banks informing them that the ratio of Umadevi's case

(supra) is binding on the Government as also on the PSUs and

therefore, the services of contractual employees cannot be regularized.

6. The Court has examined the affidavit filed by the

respondent/Bank as also the contents of the Circular dated 10.12.2013

issued by the Ministry of Finance, Govt. of India. A bare perusal of the

letter of appointment dated 16.6.2011 issued by the respondent/Bank

to the petitioner engaging her as a CRE for a period of two years would

reveal that her appointment was purely contractual in nature and she

had been duly informed that unless the Bank intimates her otherwise,

upon expiry of the contractual period, her appointment would

automatically cease. In this context, it is relevant to refer to the

following clauses of the aforesaid letter of appointment for ready

reference :

"1. The engagement will be purely on a contractual basis, for a specific period of two (2) years from the date of year engagement. The Bank, solely at its own discretion and on the basis of your performance, has an option to consider making you a fresh offer to renew this contract for a further period of 2 years on such terms and conditions as may be decided at that time. Your services will be utilized for the Promotion, Marketing and Selling of Third Party Products, as may be decided by the Bank from time to time

and in its sole discretion.

2. During the period of your contractual engagement of two years, you will be entitled to a Total Compensation of Package comprising of Fixed component and a Variable component linked to performance as under. The fixed Remuneration will be Rs.20000/- per month as cost of the Company, consisting of the following components.

         Ø   Basic Pay            Rs.15000/-
         Ø   HRA                  Rs.2500/-
         Ø   Conveyance           Rs.1500/-
         Ø   Medical Aid          Rs.1000/-

         xxxxxxx

15. This Contract shall automatically cease on the expiry of the contractual period of two years, for which no separate communication will be issued. In the event of the Bank, in its sole discretion, deciding to make an offer to renew the contract for a further period you will be advised about the renewal of the contract in writing. Accordingly, unless the Bank has intimated you about the renewal of this contract in writing upon the expiry of this Contract, your appointment shall automatically cease. You shall not be eligible for any compensation about and/or after the expiry or termination of this contract.

xxxxxxx

17. You may please note that this assignment is purely contractual in nature and you shall not be entitled to claim any right of absorption in the Bank's services, or any other benefit of whatsoever nature, except what is stated in this Offer Letter, at any time during or after the contract period or earlier determination of the Contract.

xxxxxxx

20. If you are agreeable to take up the assignment in the Bank as Customer Relationship Executive on the above mentioned terms and conditions, please convey your acceptance by signing at the appropriate place at the end of this Letter of Offer of Engagement, and returning a copy of this Letter of Officer addressed to Senior Manager, Union Bank of India, Personnel Department, MPRD, Central Office, 239 - Vidhan Bhavan Marg, Nariman Point, Mumbai - 400021, within 10 days from the date of this letter." (emphasis added)

7. It is an undisputed position that the petitioner had accepted the

terms and conditions of the aforesaid letter of appointment without

any demur and only thereafter, was she appointed as a CRE for a

period of two years which term was extended by one year. Clause 15

of the Recruitment Policy of the respondent/Bank that gives an option

to the Bank to absorb a contractual appointee cannot be sought to be

enforced by the petitioner by claiming that a vested right has accrued

in her favour for being absorbed by the respondent/Bank. As noted

from the averments made by the respondent/Bank in its affidavit, its

decision to absorb some of the CREs who had been working in the

Bank in the years 2008, 2011 and 2012 was thwarted by the Ministry

of Finance, Govt. of India in the light of the decision of the Supreme