Gauhati High Court
Page No.# 1/25 vs Purabi Lahan Handique And 13 Ors on 13 June, 2025
Author: K.R. Surana
Bench: Kalyan Rai Surana, Malasri Nandi
Page No.# 1/25
GAHC010142492024
2025:GAU-AS:7840-DB
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No: WA/233/2024
THE BRAHMAPUTRA VALLEY FERTILIZER CORPORATION LIMITED
A GOVT. OF INDIAN UNDERTAKING
REP. BY ITS CHAIRMAN AND MANAGING DIRECTOR
HAVING ITS REGISTERED OFFICE AT NAMRUP
P.O.- PARBATPUR
DIST.- DIBRUGARH
ASSAM
PIN- 786623.
VERSUS
PURABI LAHAN HANDIQUE AND 13 ORS.
W/O ALAKESH HANDIQUE
SUBJECT TEACHER (CHEMISTRY)
R/O DIGHALA SONOWAL GAON
DIBRUGARH
WARD NO.1
DIST.- DIBRUGARH
ASSAM.
2:KUNJALATA SAIKIA
W/O HIMANTA DOWARAH
SUBJECT TEACHER (ASSAMESE)
R/O RANGAGORAH GAON
P.O.-PARBATPUR
PIN- 786623
DIST- DIBRUGARH
ASSAM
3:RUNJUN KACHARI
Page No.# 2/25
W/O LATE LAKSHESWAR KONWAR
TEACHER (SCIENCE)
R/O BVFCL
NAMRUP
QUARTER NO. 214/II/C
PIN-786623
P.O- PARBATPUR
DIST- DIBRUGARH
ASSAM.
4:DIPANKOR CHUTIA
S/O MR. JOGESH CHUTIA
SUBJECT TEACHER (PHYSICS)
R/O BVFCL COLONY
NAMRUP
QUARTER NO.- 145/II/A
P.O.- PARBATPUR
PIN-786623
DIST- DIBRUGARH
ASSAM.
5:RAJIB LUCHAN GOGOI
S/O LATE MOHENDRA GOGOI
SUBJECT TEACHER (GEOGRAPHY)
R/O BVFCL COLONY
NAMRUP
QUARTER NO.- 464/III/C
P.O.- PARBATPUR
PIN-786623
DIST- DIBRUGARH
ASSAM.
6:RASHMIMONI GOGOI CHAKRABORTY
W/O JAYANTA CHAKRABORTY
SUBJECT TEACHER (HOME SCIENCE)
R/O BVFCL COLONY
NAMRUP
QUARTER NO.- 350/III/C
P.O.- PARBATPUR
PIN-786623
DIST- DIBRUGARH
ASSAM.
7:HEMAM MANORAMA DEVI
W/O HIJAM HOMENDRO SINGH
Page No.# 3/25
SUBJECT TEACHER (MATHEMATICS)
R/O BVFCL COLONY
NAMRUP
QUARTER NO.- 132/HT/E
P.O.- PARBATPUR
PIN-786623
DIST- DIBRUGARH
ASSAM.
8:DEBAJIT NEOG
S/O LATE PHANIDHAR NEOG
SUBJECT TEACHER (ECONOMICS)
R/O BVFCL COLONY
NAMRUP
QUARTER NO.- 620/F/III
P.O.- PARBATPUR
PIN-786623
DIST- DIBRUGARH
ASSAM.
9:SIMI MOHAN
W/O SUJIT GOGOI
SUBJECT TEACHER (SOCIAL SCIENCE)
R/O BVFCL COLONY
NAMRUP
QUARTER NO.- 273/II/B
P.O.- PARBATPUR
PIN-786623
DIST- DIBRUGARH
ASSAM.
10:NIRANJANA KHAKLARY
SUBJECT TEACHER (HINDI) D/O MR. GOBINDA KHAKLARY
SUBJECT TEACHER (HINDI)
R/O RANGAGORAH PANIDORIA GAON
NAMRUP
P.O.-PARBATPUR
PIN- 786623
DIST- DIBRUGARH
ASSAM
11:PARINEETA BOKALIAL
W/O JAYANTA NEOG
SUBJECT TEACHER (ENGLISH)
R/O BVFCL COLONY
Page No.# 4/25
NAMRUP
QUARTER NO.- 346/III/C
P.O.- PARBATPUR
PIN-786623
DIST- DIBRUGARH
ASSAM.
12:SUNALI NANDIA
W/O BIJIT TANTI
SUBJECT TEACHER (ENGLISH)
R/O BVFCL COLONY
NAMRUP
QUARTER NO.- 441/III/C
P.O.- PARBATPUR
PIN-786623
DIST- DIBRUGARH
ASSAM.
13:THE UNION OF INDIA
REP. BY THE SECRETARY TO THE GOVT. OF INDIA
DEPTT. OF FERTILIZERS
MINISTRY OF CHEMICAL AND FERTILIZERS
SHASTRI BHAWAN
NEW DELHI- 110001.
14:THE UNION OF INDIA
MINISTRY OF HUMAN RESOURCES
SHASTRI BHAWAN
NEW DELHI- 110001.
------------
Advocate for : MR. M K CHOUDHURY
Advocate for : DY.S.G.I. appearing for PURABI LAHAN HANDIQUE AND 13 ORS.
BEFORE
HON'BLE MR. JUSTICE KALYAN RAI SURANA
HON'BLE MRS. JUSTICE MALASRI NANDI
For the appellant : Mr. M.K. Choudhury, Senior Advocate.
: Mr. B. Sharma, Advocate.
For respondent Nos.1 to 12 : Mr. S. Dutta, Senior Advocate.
: Mr. S. Dihingia, Advocate.
Date of hearing : 29.04.2025.
Date of judgment : 13.06.2025.
Page No.# 5/25
JUDGMENT AND ORDER
(CAV)
(K.R. Surana, J)
Heard Mr. M.K. Choudhury, learned senior counsel, assisted by
Mr. B. Sharma, learned counsel for the appellant. Also heard Mr. S. Dutta,
learned senior counsel, assisted by Mr. S. Dihingia, learned counsel for the
private respondent nos. 1 to 12 in W.A. 242/2024. None appeared on call for the
respondent nos. 13 and 14.
2) The respondent nos. 1 to 12 in this intra-court appeal are the
writ petitioners in W.P.(C) No. 6558/2023. The Union of India, represented by
the Secretary, Govt. of India, Department of Fertilizers, proforma respondent no.
13 was arrayed as respondent no. 1 in the writ petition. The Union of India,
represented by the Secretary, Govt. of India, Ministry of Human Resource,
proforma respondent no. 14 herein, was arrayed as respondent no. 9 in the writ
petition. The appellant in this appeal was arrayed as respondent no. 1 in the
writ petition. The officials of the appellant, who were arrayed as respondent
nos. 3 to 8 in the writ petition are not arrayed as respondents and/or proforma
respondents in this appeal.
3) In brief, the case of the said respondents in the writ petition is
that they were initially appointed as contractual teachers at the Brahmaputra
Valley Fertilizer Corporation Limited Higher Secondary School, Namrup
(hereinafter referred to as BVFCLHS School for brevity). It was projected that
the said school was established by Namrup Unit of the erstwhile Hindustan
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Fertilizer Corporation Ltd. (HFCL for brevity), a public sector undertaking under
the Department of Fertilizer, Govt. of India. The said HFCL was declared sick.
However, the Central Government wanted to revive the Namrup Unit of HFCL
and thus, Brahmaputra Valley Fertilizer Corporation Ltd., Namrup (BVFCL for
brevity) was incorporated, which took over the assets of the erstwhile HFCL. It
has been further projected that the service contract of the private respondents
were renewed from time to time till date, with artificial breaks for 2-3 days, with
no right to claim regularisation or absorption into permanent posts. Accordingly,
the private respondents had continued to serve in the said school since their
appointment without any protest.
4) Seeking regularisation of their services, the private respondents
had approached this court by filing a writ petition, which was registered and
numbered as W.P.(C) 6558/2023. The learned Single Judge, by referring to the
decision in the case of Pranjal Dutta v. Union of India & Ors. [W.P.(C)
7253/2019, decided on 23.04.2024], allowed the writ petition by directing that
the cases of the respondent nos. 1 to 12 are to be taken up for regularisation as
teachers in BVFCLHS School by following the parameters in said earlier
judgment dated 23.04.2024.
5) The learned senior counsel for the appellant has referred to the
grounds of appeal and amongst others, emphasis was given on the point that
the judgment dated 23.04.2024 in W.P.(C) 7253/2019was passed as the writ
petitioners therein were found to have rendered more than 30 years of service,
whereas some of the private respondents have not even completed 10 years of
service in the said school. It was also submitted that those appointments were
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purely temporary and therefore, the private respondents were rendering service
with full knowledge of their status and they had accepted their temporary status
without any objection whatsoever. It has further been submitted that the BVFCL
was a loss making and sick corporation and therefore, when the survival of the
appellant is at stake, the impugned order, directing regularisation of the service
of the private respondents requires interference. It has also been submitted that
the private respondents have not produced any document to show that the
posts in which the private respondents were engaged were duly sanctioned
posts. By citing the case of Secretary, State of Karnataka v. Uma Devi, (2006) 4
SCC 1, it was submitted that the said judgment was rendered by the Supreme
Court of India on 10.04.2006, when most of the private respondents had not
entered into service as temporary appointees and therefore, without
continuously serving for more than ten years, the ratio laid down in paragraph
53 of the case of Uma Devi (supra) created an embargo on any order for
regularisation of service of the private respondents without existence of
permanent posts. Moreover, by referring to the decision of the Supreme Court of
India in the case of State of Uttar Pradesh v. Arvind Kumar Srivastava, (2015) 1
SCC 347, it was submitted that the private respondents had not challenged the
non- regularising their service and thus, had acquiesced to the same. Therefore,
all the private respondents are fence-sitters. Only after their counterparts had
got a favourable order in W.P.(C) 7253/2019, the private respondents have
belatedly approached this Court. Accordingly, it has been submitted that the
private respondents were not entitled to any relief in their writ petition, which
was liable to be dismissed.
6) It has further been submitted that the BVFCLHS School did not
Page No.# 8/25
form a part of assets that was taken over by the appellant in the proceedings
before the Board of Industrial and Financial Reconstruction (BIFR or short)
and/or in the appellate proceeding before the Appellate Authority for Industrial
and Financial Reconstruction (AAIFR for short), because neither the name of the
private respondents nor the name of the HFCHS/BVFCLHS School figured in the
list of employees and assets taken over by the appellant in the demerger order
passed by the AAIFR. Hence, it has been submitted that the impugned order
was liable to be interfered with.
7) It has further been submitted that the liability of the BVFCLHS
School was not fastened upon the appellant vide the demerger order dated
26.04.2002, passed by the AAIFR. It has also been submitted that by the said
order, specific properties and assets, including industrial units and officers
whose service was made available to the BVFCL. It was also submitted that at
the time of demerger, the erstwhile HFCL was operating multiple educational
Institutions including Kendriya Vidyalay School, Model School and BVFCLHS
School, which is not mentioned in the demerger order. Thus, it has been
submitted that the running of the operation of the said BVFCLHS School is only
one of the steps taken by the BVFCL towards discharge of its corporate social
responsibility (CSR for short). Moreover, it has been submitted that no children
of any BVFCL employees are studying in the said school, but the said school
caters to the children of in and around Namrup town. However, on a pointed
query of the Court, it has been submitted that the land of the BVFCJHS School,
including constructions standing thereon is owned by the appellant, however, it
has been submitted that the said BVFCLHS School is not an integral part of the
assets handed over to the appellant by virtue of order dated 26.04.2002, passed
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by the AAIFR.
8) It has been submitted that the private respondents have heavily
relied on the Inter-Office Memo dated 27.09.1991, to project that the
sanctioned strength of employees of the said BVFCLHS School is 134, with 117
teachers (H.S.), but the same is an unsigned document and the office of the
BVFCL has no record of any such document. Accordingly, it has been submitted
that the appellants cannot vouch for authenticity of the said document or in
respect of its contents. Moreover, it has been submitted that the said document
is prior to BVFCL's coming into existence. Accordingly, it is submitted that
without any specific provision in the demerger scheme, by which the teachers
and other staff of BVFCLHS School were made employees of BVFCL, the private
respondents cannot be treated as the employees of BVFCL so as to fasten any
financial liability for regularising the service of the private respondent nos. 1 to
12 or for paying the salary or other emoluments to the said private respondents.
9) The learned senior counsel for the appellants had extensively
referred to the materials available in the memo of appeal, including the writ
petition, affidavit-in-opposition and on the additional affidavit filed by the
appellants. Moreover, in support of his submissions, the learned senior counsel
for the appellants has cited the following cases, viz., (1) Secretary, State of
Karnataka & Ors. v. Uma Devi & Ors., (2006) 4 SCC 1; (2) Kismat Singh v.
Piariya Devi & Ors., 2018 SCC Online Del 11551; (3) Jaggo v. Union of India,
SLP(C) No. 5580/2024; (4) Nihal Singh & Ors. v. State of Punjab & Ors., (2013)
14 SCC 65; (5) Vinod Kr. & Ors. v. Union of India, SLP(C) Nos. 22241-42/2016;
(6) National Fertilizers Ltd. & Ors. v. Somvir Singh, (2006) 5 SCC 493; (7) State
Page No.# 10/25
of Karnataka & Ors. v. M.L. Kesar & Ors., (2010) 9 SCC 247; (8) Surinder Prasad
Tiwari v. U.P. Rajya Krishi Utpadan Mandi Parishad & Ors., (2006) 7 SCC 684; (9)
State of Rajasthan & Ors. v. Daya Lal & Ors., (2011) 2 SCC 429; (10) Mohinder
Singh Gill & Anr. v. Chief Election Commissioner, New Delhi & Ors., (1978) 1 SCC
405; (11) Masauddin Ahmed v. The State of Assam, Crl. Appeal No. 879/2004;
(12) Gopal Krishnaji Ketkar v. Mohammed Haji Latif & Ors., AIR 1968 SC 1413;
(13) Srinivas Raghavendrarao Desai (Dead) v. V. Kumar Vamanrao @ Alok &
Ors., 2024 INSC 165: (2024) 0 Supreme(SC) 184; (14) D.S. Parvathamma v. A.
Srinivasan, (2003) 4 SCC 705; (15) Oriental Insurance Co. Ltd. V. Smt. Taramai
Borah & Ors., MAC Appeal No. 252/2017; and (16)Greater Mohali Area
Development Authority & Anr. v. Manju Jain & Ors., (2010) 9 SCC 157.
10) Per contra of the learned Senior Counsel for the private
respondents have submitted that all throughout the BVFCL has been paying fix
salary to the private respondents, treating them as a contractual teacher
without giving them status of a permanent and/or regular teacher only to
deprive the private respondents of their rightful service benefit. It has also been
submitted that in paragraph-4 of the writ petition, the private respondents had
specifically pleaded that as per record, in the year 1991, the total sanctions
strength of the school was 134, out of which 117 numbers of sanctioned post
were for teachers (H.S.) and 17 numbers were for teachers (P.S.). in this regard,
it has been submitted that while responding to statements made in paragraph
nos. 2 to 4 of the writ petition, the appellant had not specifically denied about
the existence of sanctioned strength of 117 teachers (H.S.) in the BVFCLHS
School. Rather, the appellants had stated that as per the report submitted by
the National Productivity Council 2022, there are only 2 regular post, being the
Page No.# 11/25
Principal (Grade E-3) and Vice-Principal (Grade E-2) and a total number of 28
senior teachers on ad-hoc /contractual basis in the BVFCLHS School.
Accordingly, it has been submitted that the alleged absence of record of list of
sanctioned strength of school teachers of BVFCLHS School cannot mean as if
the appellant has denied the existence of any such documents. Accordingly, it
was submitted that the appeal is without any merit and is liable to be dismissed.
11) In support of his submissions, the learned Senior Counsel for the
Appellant has cited the following cases, viz., (i) Uma Devi (supra); (ii) State of
J&K v. District Bar Association, Bandipora, (2017) 3 SCC 410 , (iii) Shripal & Anr.,
Nagar Nigam, Ghaziabad, 2025 INSC 144: (2025) 0 Supreme(SC) 265.
12) At this juncture, it would be apposite to quote hereinbelow
paragraph nos. 43 and 53 of the case of Uma Devi (3) (supra):-
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 appointment 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
Page No.# 12/25
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. High Courts acting under Article 226 of the Constitution of India,
should not ordinarily issue directions for absorption, regularisation, or permanent
continuance unless the recruitment itself was made regularly and in terms of the
constellational scheme. Merely because, an employee had continued under cover
of an order of 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 bypassing of
the constitutional and statutory mandates.
53. One aspect needs to be clarified. There may be cases where irregular
appointments (not illegal appointments) as explained in State of Mysore v. S.V.
Narayanappa [(1967) 1 SCR 128: AIR 1967 SC 1071], R.N. Nanjundappa v. T.
Thimmaiah & Anr. [(1972) 1 SCC 409: (1972) 2 SCR 799], and B.N. Nagarajan &
Ors. v. State of Karnataka & Ors.,[(1988) 1 SCC 122: (1988) 1 SCR 598], and
referred to in paragraph 15 above, 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 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 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 regularise as a one-time measure, the services of such irregularly
appointed, who have worked for ten years or more in duly sanctioned posts but
not under cover of orders of courts or of tribunals and should further ensure that
regular recruitments are undertaken to fill those vacant sanctioned posts that
require to be filled up, in cases where temporary employees or daily wagers are
being now employed. The process must be set in motion within six months from
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this date. We also clarify that regularization, if any already made, but not
subjudice, need not be reopened based on this judgment, but 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 .
13) In light of the decision in the case of Uma Devi (supra), the
records available in the present appeal has been examined to see as to how
many years of service the respondent nos. 1 to 12 have rendered without
intervention of the Court i.e. as on 18.10.2023, when W.P.(C) 6558/2023 was
filed, as well as to find out the manner in which appointment orders/ letters
were issued to engage the said respondents in BVFCLHS School as ad hoc
teachers.
14) As per materials available on record, the approximate length of
service that the private respondent nos. 1 to 12 have rendered in BVFCLHS
School, Namrup, as on 18.10.2023, the date when W.P.(C) 6558/2023 was filed,
are as follows:-
i. In paragraph 5 of the writ petition (available
at pp.46 of the memo of appeal), the respondent no. 1 has stated
as follows:- "... the Namrup Unit of HFCL, with a view to form a
panel for recruitment of teachers and demonstrators against
existing vacancies of sanctioned posts in Hindustan Fertilizer
Corporation Limited (referred to HFCL from here on) higher
secondary school (later rechristened as BVFCL higher secondary
school) published advertisements and also issued requisition to
the jurisdictional employment exchanges by following proper
recruitment procedures. The name of the petitioner along with
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others, who were graduates and eligible to be considered for
appointment against the posts involved, were forwarded by the
employment exchanges. Accordingly, by letter dated 11.07.2006,
issued by the Chief Personnel Officer, the petitioner was called to
appear for the scheduled interview before the selection committee
on 28.06.2006 at 9.30 a.m. alongwith her necessary academic
documents." The copy of the calling letter of the respondent no. 1
has been annexed to the writ petition as Annexure-3. However, for
the reasons best known to the appellants, the said document is
not found to be annexed to the memo of appeal. In paragraph 6
of the writ petition (at pp.47 of the memo of appeal), the
respondent no.1 has pleaded that she was empanelled for
appointment and after following due procedure for selection, the
respondent no. 1 was appointed as Subject Teacher (Chemistry)
on contractual basis on a consolidated pay of Rs.1,500/- per
month and she joined on 11.07.2006. In the affidavit-in-opposition
filed in W.P.(C) 6558/2023 by the Manager (Legal), BVFCL on
behalf of the respondent nos. 2 to 8 in the writ petition, the
statements made by the respondent no. 1 in paragraph nos. 5 and
6 of the writ petition have not been denied. Thus, in the absence
of any denial, it can be presumed that the respondent no.1 has
rendered service of approximately 17 years 3 months on
18.10.2023.
ii. Appointment order of respondent no.2 to join
BVFCLH School, Namrup was issued on 19.11.2012. Her date of
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joining is not pleaded. Thus, the said respondent is presumed to
have rendered service of approximately 10 years 10 months as on
18.10.2023.
iii. Appointment order of respondent no.3 to join
BVFCLH School, Namrup was issued on 19.11.2012. Her date of
joining is not pleaded. Thus, the said respondent is presumed to
have rendered service of approximately 10 years 10 months as on
18.10.2023.
iv. Appointment order of respondent no.4 to join
BVFCLH School, Namrup was issued on 04.03.2011. His name was
sponsored by employment exchange. However, the date of joining
is not pleaded. Thus, the said respondent is presumed to have
rendered service of approximately 12 years 7 months as on
18.10.2023.
v. Appointment order of respondent no.5 to join
BVFCLH School, Namrup was issued on 13.08.2007, which does
not state that his name was sponsored by any employment
exchange. His date of joining is also not pleaded. Thus, the said
respondent is presumed to have rendered service of approximately
16 years 2 months as on 18.10.2023.
vi. Appointment order of respondent no.6 to join
BVFCLH School, Namrup was issued on 04.08.2014, which
mentions that her name was sponsored by employment exchange.
Her date of joining is not pleaded. Thus, from the date of her
appointment order, the said respondent is presumed to have
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rendered service of approximately 9 years 2 months as on
18.10.2023, which is less than 10 years of continuous service.
vii. Appointment order of respondent no.7 to join
BVFCLH School, Namrup was issued on 01.05.2009. However, it is
not mentioned in her appointment order that her name was
sponsored by employment exchange. Her date of joining is not
pleaded. Thus, the said respondent is presumed to have rendered
service of approximately 14 years 5 month as on 18.10.2023.
viii. Appointment order of respondent no.8 to join
BVFCLH School, Namrup was issued on 15.11.2013, wherein it has
been stated that his name was sponsored by employment
exchange. His date of joining is not pleaded. Thus, the said
respondent is presumed to have rendered service of approximately
9 years 11 months as on 18.10.2023.
ix. Appointment order of respondent no.9 to join
BVFCLH School, Namrup was issued on 15.05.2017. In her
appointment order, it is not stated that her name was sponsored
by employment exchange. Her date of joining is not pleaded.
Thus, the said respondent is presumed to have rendered service
of approximately 6 years 5 months as on 19.06.2024.
x. Appointment order of respondent no.10 to
join BVFCLH School, Namrup was issued on 15.05.2017. In her
appointment order, it is not stated that her name was sponsored
by employment exchange. Her date of joining is not pleaded.
Thus, the said respondent is presumed to have rendered service
Page No.# 17/25
of approximately 6 years 5 month as on 18.10.2023.
xi. Appointment order of respondent no.11 to
join BVFCLH School, Namrup was issued on 19.05.2017. In her
appointment order, it is not stated that her name was sponsored
by employment exchange. Her date of joining is not pleaded.
Thus, the said respondent is presumed to have rendered service
of approximately 6 years 5 months as on 18.10.2023.
xii. Appointment order of respondent no.12 to join BVFCLH
School, Namrup was issued on 29.10.2018. In her appointment
order, it is not stated that her name was sponsored by
employment exchange. Her date of joining is not pleaded. Thus,
the said respondent is presumed to have rendered service of
approximately 4 years 11 months as on 18.10.2023.
15) On examination of the materials available on record, the
appointment orders in respect of the respondent nos. 1 to 12 were issued as
follows:-
a. The respondent no. 1 has pleaded that she was selected and
appointed after issuing advertisement and after calling candidates from
employment exchange.
b. However, the respondent nos. 2 to 12 have not specifically pleaded
that they had applied for the post of teachers pursuant to an
advertisement and/or that their names were sponsored by Employment
Exchange and they were then selected and appointed.
c. Nonetheless, on a perusal of the documents available in the memo of
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appeal, it is seen that the names of the respondent nos. 2, 4, 6 and 8
were sponsored by the University Employment Information and
Guidance Bureau, which is an Employment Exchange as per the State
Government website. After facing interview, they were offered
contractual appointment for the post of Teachers vide appointment
letters issued by the Personnel Officer, BVFCL, Namrup.
d. The name of respondent no. 3 was sponsored by Employment
Exchange, Namrup and after interview, he was offered contractual
employment as Teacher vide appointment letter were issued by the
Personnel Officer, BVFCL, Namrup.
e. There are no documents in the writ petition to show that the names
of the respondent nos. 5, 7 and 9 to 12 were sponsored by any
employment exchange. From their appointment letters, it appears that
they were appointed on the basis of applications made and interview
held and their appointment orders were issued by the officials of
BVFCL.
f. Moreover, there are no documents in the writ petition to show that
the respondent nos. 9, 10 and 11 had undergone the process of
interview before being appointed. Their appointment orders were
issued by the Chief Personnel Officer, BVFCL.
16) Thus, as indicated in paragraph nos. 14 and 15 above, the
names of respondent nos. 1 to 4, 6 and 8 are found to have been sponsored by
employment exchange. However, out of the said respondents, only the
respondent nos. 1, 2, 3 and 4 are found to have rendered service of more than
Page No.# 19/25
10 years at BVFCLHS School, Namrup as on 18.10.2023, the date when W.P.(C)
6558/2023 was filed. The respondent nos. 6 and 8 to 12 are found to have not
rendered more than 10 years of service as on 18.10.2023, the date when W.P.
(C) 6558/2023 was filed. Thus, the appointment orders of only respondent nos.
1, 2, 3 and 4 are found to be in accordance with law laid down in the case of
Uma Devi (supra) and State of Karnataka & Ors. v. M.L. Kesari & Ors., (2010) 9
SCC 247.
17) It is seen from the documents available in the record, the
appointment orders in respect of the respondent nos. 2 to 12 were issued by
the officials of the BVFCL and the appointment order of respondent no. 1 was
issued by the erstwhile HFCL. It is not the case of the appellants that (i) the
appointment of respondent nos. 2 to 12 were illegal, and (ii) that the officials
who had issued the appointment orders/letters had acted illegally. Therefore,
the stand of the appellant that the BVFCLHS School was not taken over by the
appellant, has been referred to only to be rejected. If the appellant corporation
had not taken over the ownership and management of the BVFCLHS School,
their officials had no business to issue appointment orders and/or order for
extension of ad hoc appointment of the respondent nos.1 to 12, thereby
appointing them as contractual teachers and to renew their appointment from
time to time after making some days of artificial break in their service in the
said BVFCLHS School. By paying the salary of the private respondents, the
appellant and its officials had acquiesced to their appointment. Thus, by
necessary implication, the appellants are found to be acting as the owner, who
is in the management of the said BVFCLHS School. The submissions made by
the learned senior counsel for the appellant that the BVFCL was paying salary of
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the contractual teachers under Corporate Social Responsibility (CSR for short),
has to be outrightly rejected because it is neither the pleaded case of the
appellants either in their affidavit-in-opposition filed in the writ petition, nor
there is any statement in the Memo of this appeal that the appellant corporation
is giving financial grant to the School Management Committee for paying salary
to contractual teachers. Moreover, no document has been filed by the appellant
to show that the payment of salary was by way of CSR activity of the appellant.
The appellant has not specifically denied that it was paying consolidated salary
directly to the contractual teachers.
18) The learned senior counsel for the appellant had submitted that
the private respondents were appointed on contractual basis for a period of 6
(six) months and/or for more shorter period and they were re-appointed after
giving a break-in-service for about 2 to 3 days. Thus, it was submitted that the
nature of appointment made, signifies that the appointment of the private
respondents was on temporary basis and therefore, they have no right for
regularization of their service. The said contention deserves to be and is
accordingly, rejected because of the fact that although a specific statement was
made in paragraph-4 of the writ petition that the sanctioned strength of
teachers in the BVFCLHS School was 117 (H.S.), but the said statement has not
been specifically denied by the appellant and thus, amounts to admission by
virtue of the doctrine of non-traverse.
19) The other submissions made by the learned senior counsel for
the appellant is that having accepted the contractual appointment and extension
thereto from time to time without seeking regularisation, the inaction on part of
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the private respondents would act as an estoppel against the private
respondents. In the said context, it has been discussed hereinbefore that the
names of respondent nos. 1 to 4, 6 and 8 were sponsored either by the
University Employment Information and Guidance Bureau, which is an
Employment Exchange in the State Government website, or by the Employment
Exchange, Namrup. Thus, the private respondent nos. 1 to 4, 6 and 8 have
been able to establish that they were appointed after following the due process
of law. In this regard, the learned Single Judge, while dealing with the
contention on behalf of the appellant had held that mode of recruitment on the
strength of forwarding of names by the concerned employment exchange is a
recognized mode in law for holding a selection process. In this intra-court
appeal, the Court finds no reason to disagree with the said well- considered
finding of the learned Single Judge.
20) It is also not the case of the appellant that at the time of entry
into service, the private respondents were not qualified to hold the post of
teachers. It is also not the case of the appellant that they have not been re-
engaging the private respondents as contractual teachers for BVFCLHS School.
Therefore, though the engagement and/or appointment of the private
respondent nos. 1 to 4, 6 and 8 cannot be said to be illegal appointments,
however, out of the said respondent nos. 1 to 4, 6 and 8, only the respondent
nos. 1 to 4 are found to have rendered more than 10 years of service without
intervention of the Court.
21) In order to bring home the point that there were only 2 (two)
sanctioned post for the school, being the Principal and Vice-Principal, the
Page No.# 22/25
learned senior counsel for the appellant had placed heavy reliance on the
Manpower Assessment Report of BVFCLHS School, prepared by the National
Productivity Council. It is noted that the entire report is not appended to the
affidavit-in-opposition filed on behalf of respondent nos.2 to 8 in the writ
petition i.e. the appellant herein and its various authorities. However, on a
perusal of the said report, it is seen that paragraph 9.0 and sub-paragraphs
thereto relate to BVFCLHS School. The inclusion of the BVFCLHS School in the
said report stands as a testimony of fact that the said school is an integral asset
of BVFCL, i.e. the appellant. Assuming that the said school was not an asset of
an Govt. of India undertaking, then there is no explanation by the appellant as
to why the said school, leaving out a large number of schools in the State of
Assam, had been included in the report prepared by the National Productivity
Council, which is established under DPIIT, Ministry of Commerce and Industry,
Govt. of India. Thus, the stand of the appellant that BVFCL is not the owner of
BVFCLHS School deserves rejection. In the said report, amongst others,
reference is made to the pupil-teacher ratio and the said report states that the
pupil-teacher ratio in BVFCLHS School is nearly 32:1 for 28 teachers. Therefore,
when the erstwhile HFCL and thereafter, the BVFCL has been continuously
running the BVFCLHS School by appointing teachers temporarily and/or on ad
hoc basis from time to time by paying their fixed-pay, the Court is inclined to
reject the stand of the appellant that it has no manpower requirement for
running BVFCLHS School.
22) Under such circumstances, the Court is unable to take a view
contrary to the observations made by the learned Single Judge that in the
present scenario regarding the scarcity of employment, the bargaining power of
Page No.# 23/25
an incumbent who has been offered a particular post cannot be held to be at
par with the employer and therefore, the question of any estoppel coming in the
way of such claim would not arise.
23) On the unique facts of this case, the cases cited by the learned
senior counsel for the appellants are not found to help the appellants in any
manner. Therefore, no purpose would be served to burden this judgment and
order with discussion on those cases.
24) In light of the discussions above, the private respondent nos. 1,
2, 3 and 4 are held to have been appointed after following the due process of
law. Their names are found to have been sponsored by the employment
exchange. They were appointed after holding interview. Moreover, they have
rendered more than 10 years of service as on 18.10.2023, the date of filing of
W.P.(C) 6558/2023, which is without the intervention of the Court. Thus, the
appointment of the said respondent nos. 1 to 4 is held to be not illegal. Thus,
this appeal fails in respect of the said respondent nos. 1, 2, 3 and 4.
25) Although the respondent nos. 5 and 7 have rendered more than
10 years of service as on 18.10.2023, i.e. the date when W.P.(C) 6558/2023 was
filed, but their initial appointment order, available in the Memo of Appeal, do not
reveal that that their names were sponsored by any employment exchange or
that they had applied pursuant to an employment advertisement.
26) The respondent nos. 8, 9, 10, 11 and 12 are found to have not
completed more than 10 years of service as on 18.10.2023. Moreover, their
names are not found to be sponsored by any employment exchange. The said
respondents are also not found to have applied for the post pursuant to any
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employment advertisement.
27) Therefore, insofar as the appointment of the respondent nos. 5
to 12 in service is concerned, their appointment is not found sustainable on
facts and in law as laid down in the case of Uma Devi (supra) and M.L. Kesari
(supra). Resultantly, the impugned judgment dated 19.06.2024, passed by the
learned Single Judge in W.P.(C) 6558/2023, directing regularisation of the
service of the respondent nos. 5 to 12, is not sustainable in light of the law laid
down in the case of Uma Devi (supra) and the case of M.L. Kesari (supra). The
learned senior counsel for the respondent nos. 1 to 12 have not been able to
show that the said ratio, as laid down in the case of Uma Devi (supra), has been
diluted by any case law cited by him at the Bar. Therefore, as the appointment
of respondent nos. 5, to 12 are held to be not in accordance with law, no
purpose would be served in discussing the cases cited by the learned senior
counsel for the private respondents as those cases do not help the respondent
nos. 5 to 12 in any way.
28) Accordingly, this appeal is dismissed in respect of the respondent
nos. 1 to 4. However, the Court is inclined to partly allow this appeal insofar as
the respondent nos. 5 to 12 are concerned and to that extent, the impugned
order dated 19.06.2024, passed by the learned Single Judge in W.P.(C) No.
6558/2023, is set aside by holding that the said respondent nos. 5 to 12 are not
entitled to the relief of regularisation of their services.
29) In light of the discussions above, the Court is inclined to pass
the following -
Page No.# 25/25
ORDER
30) In respect of respondent nos. 1, 2, 3 and 4, this appeal is
dismissed. The decision of the learned Single Judge would apply propio vigore in
respect of the said respondents.
31) In respect of the respondent nos. 5 to 12, this appeal stands
allowed. The said respondents are not found entitled to the relief of
regularisation of service in terms of the impugned order dated 19.06.2024,
passed by the learned Single Judge in W.P.(C) No. 6558/2023.
32) The parties are left to bear their own cost.
JUDGE JUDGE
Comparing Assistant
