Gauhati High Court
Page No.# 1/14 vs Pranjal Dutta And 3 Ors on 13 June, 2025
Author: K.R. Surana
Bench: Kalyan Rai Surana, Malasri Nandi
Page No.# 1/14
GAHC010142492024
2025:GAU-AS:7840-DB
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case : WA/215/2024
THE BRAHMAPUTRA VALLEY FERTILIZER CORPORATION LIMITED
A GOVT. OF INDIA UNDERTAKING REPRESENTED BY ITS CHAIRMAN AND
MANAGING DIRECTOR
HAVING ITS REGISTRATION OFFICE AT NAMRUP
PO PARBATPUR
DIST DIBRUGARH
ASSAM 786623
VERSUS
PRANJAL DUTTA AND 3 ORS.
S/O. SRI R.K DUTTA
R/O. QUARTER NO. 68/II/A BVFCL COLONY
NAMRUP
P.O. PARBATPUR
PIN-786623
P.S. NAMRUP
DIST. DIBRUGARH
ASSAM.
2:AFTAB ALI
S/O. MD. S. ALI
R/O. HFC QUARTER NO.162/C/I
BVFCL COLONY
NAMRUP
P.O. PARBATPUR
PIN-786623
P.S. NAMRUP
DIST. DIBRUGARH
ASSAM.
Page No.# 2/14
3:HIMANTA DOWARAH
S/O. SRI SASHIDHAR DOWARAH
VILL. RANGAGORAH
P.O. PARBATPUR
PIN-786623
P.S. NAMRUP
DIST. DIBRUGARH
ASSAM.
4: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.
------------
Advocate for : MR. A SARMA
Advocate for : MR. S DIHINGIA appearing for PRANJAL DUTTA AND 3 ORS.
BEFORE
HON'BLE MR. JUSTICE KALYAN RAI SURANA
HON'BLE MRS. JUSTICE MALASRI NANDI
For the appellant : Mr. A. Sarma, Advocate.
For respondent Nos.1 to 3 : Mr. R.P. Sarmah, Senior Advocate.
: Ms. M. Changmei, Advocate.
Date of hearing : 29.04.2025.
Date of judgment : 13.06.2025.
JUDGMENT AND ORDER
(CAV)
(K.R. Surana, J)
Heard Mr. A. Sarma, learned counsel for the appellant in W.A.
215/2024. Also heard Mr. R.P. Sarmah, learned senior counsel, assisted by Ms.
M. Changmei, learned counsel for the private respondent no. 1, 2 and 3. There
is no representation on behalf of the respondent no. 4.
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2) The respondent nos. 1, 2 and 3 in this intra-court appeal are
the writ petitioners in W.P.(C) No. 7253/2019. The respondent no.1 in the writ
petition is arrayed as respondent no.4 in this appeal. The respondent nos. 3 to 8
in the writ petition are not arrayed as respondents in this appeal.
3) In brief, the case of the said respondents in the writ petition
was that with a view to frame a panel for recruitment of teachers and
demonstrators against existing vacancies in Hindustan Fertilizer Corporation
Higher Secondary School (HFCHS School for brevity), The Chief Personnel
Manager, HFCL, Namrup Unit had issued call letters to the respondent nos. 1
and 2 on 12.11.1993, and to the respondent no. 3 on 24.01.1996 to appear
before the interview board. Consequently, the respondent nos. 1, 2 and 3 were
appointed as follows:-
a. By an office order dated 05.03.1994, issued on behalf of Chief
Personnel Officer, HFCL, the respondent no.1 was appointed as
Teacher-cum-Demonstrator (Phy. and Chem.) with effect from
01.03.1994 on ad hoc basis on a consolidated pay of Rs.1,500/- per
month for a period of 40 days and he was posted to Hindustan
Fertilizer Corporation Higher Secondary School (HFCLHS School for
brevity) and he was given employee no. 5956.
b. By an order dated 23.02.1994, issued on behalf of Chief Personnel
Officer, HFCL, the respondent no.2 was appointed as Teacher (Sc. and
Maths) with effect from 01.03.1994 on ad hoc basis on a consolidated
pay of Rs.1,000/- per month for a period of 40 days and he was posted
to HFCLHS School and he was given employee no. 2204/5951.
c. By an order dated 03.06.1996, issued on behalf of Chief Personnel
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Officer, HFCL, the respondent no.3 was appointed as Teacher (Arts)
with effect from 05.06.1996 on ad hoc basis on a consolidated pay of
Rs.1,750/- per month for a period of 40 days and he was posted to
HFCLHS School.
4) It has been projected that the said school was established by
Namrup Unit of erstwhile HFCL, 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 in the year 2002, which took over the assets of the
erstwhile HFCL. It was 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.
5) 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) 7253/2019. 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 petitioners are to be taken up for regularisation as teachers in
BVFCLHS School by following the parameters in earlier judgment dated
23.04.2024.
6) The learned counsel for the appellant has referred to the
grounds of appeal and amongst others, emphasis was given on the point that
the appointments were ad hoc and therefore, purely temporary and therefore,
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the private respondents were rendering service with full knowledge of their
status and accepted their temporary status without any objection whatsoever. It
was further submitted that BVFCL was a loss making and sick concern and
therefore, when the survival of the appellant is at stake, there is no way that
the service of the private respondents can be regularised. It was also submitted
that the private respondents have not produced any document to show that the
posts in which the private respondents were engaged were 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 on 10.04.2006, when none
of the private respondents had rendered ten years of continuous service.
Therefore, the ratio laid down in paragraph 53 thereof create an embargo on
any order for regularisation of service 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 as the private respondents did not challenge alleged wrongful
action, if any, by the appellant or its authorities of not regularising their service,
the private respondents had acquiesced to the same and were fence sitters
while their counterparts had approached this Court and were successful, and
belatedly approached this Court, the private respondents were not entitled to
any relief in their writ petition, which was liable to be dismissed.
7) It was further submitted that the BVFCLHS School did not form
a part of assets that was taken over by the appellant in BIFR/ AAIFR proceeding
and the name of the private respondents did not figure in the list of employees
taken over by the appellant. Hence, it was submitted that the impugned order
was liable to be interfered with.
8) It was further submitted that the liability of the BVFCLHS School
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was not fastened upon the appellant at the time of demerger vide order dated
26.04.2002, passed by the Appellate Authority for Industrial and Financial
Reconstruction (AAIFR) for brevity. It was submitted that by the said order
specific properties and assets including industrial and officers were 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 was submitted that the continued
operation of the BVFCLHS School is only a steps toward corporate social
responsibility and that no children of any BVFCL employees are studying in the
said school, but in the said school caters to the children of in and around
Namrup Township. However, it is also submitted that the land and constructions
made therein, from where the BVFCLHS School is running belongs to the
appellant, yet schools is not an integral part of the assets specifically handed
over to the appellant by virtue of order dated 26.04.2002, passed by the AAIFR.
9) It was further submitted that the private respondents have
heavily relied on and inter-office memo dated 27.09.1991, to project that the
sanctioned strength of employees of the BVFCLHS School is 134, with 117
teachers, 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 of its
contents. Moreover, the said document is prior to BVFCL's coming into existence.
Accordingly, it has been submitted that without any specific provision in the
demerger scheme, the teachers and other staff of BVFCLHS School cannot be
treated as the employees under BVFCL so as to fasten any financial liability for
regularising the service of the private respondent nos. 1 to 3 or for paying
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salary and other emoluments to the said private respondents.
10) 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 and 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
of Karnataka & Ors. v. M.L. Kesari & 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 405; (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; (13)
Srinivas Raghavendra Rao Desai v. V. Kumar Vamanrao @ Alik & Ors., Civil
Appeal Nos. 7293-7294 of 2010; (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.
11) Per contra of the learned Senior Counsel for the private
respondents has submitted that all throughout the BVFCL has been paying fixed
salary to the private respondents, treating them as a contractual teacher
without giving them status of permanent and/or regular teacher only to deprive
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the private respondents of their rightful service benefit. It was also submitted
that in paragraph-4 of the writ petition, the private respondents had specifically
pleaded that as per record in 1991 the total sanctions strength of the school
was 134, where 117 numbers of sanctioned post were for teachers (H.S.) and
17 numbers were for teachers (P.S.). However, in their affidavit-in-opposition,
the appellants had nearly stated that the statement made in paragraph no. 4 of
the writ petition relates to erstwhile HFCL, which is not applicable to BVFCL.
However, there was no specific denial that sanction strength of the school was
134, out of which 117 numbers of sanctioned posts were for teacher (H.S.) and
teacher (P.S.). 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 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 school
teacher's sanctioned strength list cannot mean as if the appellant has denied
existence of any such documents. Accordingly, it was submitted that the appeal
is without any merit and liable to be dismissed.
12) In support of its submissions, the learned 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.
13) 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
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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
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) SCC 122: (1988) 1 SCR 598, and referred
to in paragraph 15 above, of duly qualified persons in duly sanctioned vacant posts
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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 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.
14) In light of the decision in the case of Uma Devi (supra), the
records available in the memo of appeal has been examined to see as to how
many years of service the respondent nos. 1 to 3 have rendered without the
intervention of the Court, i.e. as on 20.09.2019, the date when W.P.(C) No.
7253/2019 was filed, as well as to find out the manner in which appointment
orders/letters were issued to engage the said respondent nos. 1, 2 and 3 in
HFCHS School followed by engagement in BVFCLHS School as ad hoc Teachers
and Demonstrators.
15) The service status of the private respondent nos. 1, 2 and 3, as
available from the documents appended to the memo of appeal is that as the
respondent nos. 1 and 2 are serving as ad hoc teachers in HFCHS School with
effect from 01.03.1994, i.e., 25 years 6 months 19 days, and the respondent no.
3 is working in the said school as ad hoc teacher with effect from 05.06.1996,
i.e., 23 years 3 months 15 days. The said HFCLHS School is now being run and
operated by BVFCL as BVFCLHS School.
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16) Moreover, it is also seen that the respondent nos. 1, 2 and 3
have specifically pleaded that they were selected and appointed after calling
candidates from the Employment Exchange, Namrup, which remains
undisputed.
17) Therefore, as the appointment orders in respect of the
respondent nos. 1, 2 and 3, which were issued by the erstwhile HFCL, which has
been extended from time to time by the BVFCL through its officials, the stand of
the appellant and the submission made by the learned senior counsel for the
appellants that the BVFCLHS School was not taken over by the appellant, has 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 make
appointment of contractual teachers in the said school. By necessary
implication, the appellants had acted as the owner and management of the said
BVFCLHS School. The contention that the BVFCL was paying salary of the
contractual teachers under corporate social responsibility has to be rejected
because it is not the pleaded case of the appellants either in the writ proceeding
or in this appeal that the appellant corporation is giving financial grant to the
school management for paying salary to contractual teachers. Moreover, no
document has been filed by the appellant to show that the payment of salary
was in discharge of corporate social responsibility. The appellant has not
specifically denied that it was paying consolidated salary directly to the
contractual teachers.
18) The learned counsel for the appellant has contended that the
private respondents were appointed on contractual basis for a period of 6 (six)
months with a break of 2 to 3 days before their respective re-appointment not
only signifies that their appointment are temporary and therefore, they have no
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right for regularization of service is a contention, which is referred to only to be
rejected because of the fact that the specific statement made in paragraph-4 of
the writ petition that there was sanctioned strength of 117 teachers in the
BVFCLHS School was not specifically denied.
19) The other submissions made by the learned counsel for the
appellant is that having accepted the contractual appointment and extension
thereto from time to time without seeking regularization would act as an
estoppel against the private respondents.
20) The names of private respondent nos. 1, 2 and3were sponsored
by the Employment Exchange, Namrup. Thus, they are found to have been
appointed after following 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. We find no reason to disagree with the said finding. The
respondent nos. 1, 2 and 3 had entered into service while the erstwhile HFCL
existed and they have found to have rendered approximately 25, 25, and 23
years of service.
21) Therefore, it is 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
engaging and re-engaging teachers for BVFCLHS School. Therefore, the
engagement of the private respondents cannot be said to be illegal
appointment.
22) In order to bring home the point that there were only 2 (two)
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sanctioned post for the school, being the Principal and Vice-Principal, the
learned senior counsel for the appellant had placed heavy reliance on the
Manpower Assessment Report of BVFCLHS School, prepared by 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 and its various authorities. However, the relevant
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, the appellant, otherwise if the
said school was not an asset of the Govt. of India undertaking, the said school
ought not to have been included in the report prepared by the National
Productivity Council, which is established under DPIIT, Ministry of Commerce
and Industry, Govt. of India. 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, the Court is
unable to accept that the appellant corporation have no manpower requirement
for running BVFCLHS School. 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 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) In light of the discussions above, the private respondent nos. 1,
2 and 3 are not found to have been appointed without following the due process
of law. Therefore, in the considered opinion of the Court, no interference is
called for in respect of the impugned judgment and order dated 23.04.2024,
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passed by the learned Single Judge in WP(C) 7253/2019.
24) Resultantly, the appeal is dismissed. The consequences of the
order dated 19.06.2024, passed by the learned Single Judge in W.P.(C) No.
7253/2019, shall follow.
25) In light of the discussions above, the Court is inclined to pass
the following -
ORDER
26) This appeal is dismissed. The decision of the learned Single
Judge, vide order dated 19.06.2024, passed in W.P.(C) No. 7253/2019 would
apply propio vigore in respect of the private respondent nos.1, 2 and 3 in this
appeal.
27) The parties are left to bear their own cost.
JUDGE JUDGE
Comparing Assistant
