Tripura High Court
Sri Supantha Paul vs The State Of Tripura on 12 August, 2025
IN THE HIGH COURT OF TRIPURA
AGARTALA
W.P.(C) No.377 of 2024
W.P.(C) No.378 of 2024
W.P.(C) No.379 of 2024
W.P.(C) No.380 of 2024
W.P.(C) No.381 of 2024
W.P.(C) No.382 of 2024
W.P.(C) No.383 of 2024
In W.P.(C) No.377 of 2024
Sri Supantha Paul,
son of Sri Sailendra Paul, Jail Ashram
Road, Agartala-799007, P.S. East
Agartala, District-West Tripura
......... Petitioner(s)
-Versus-
1. The State of Tripura,
represented by the Commissioner
cum Secretary, Higher Education
Department, Government of Tripura,
having its office at New Capital
Complex, Agartala-799010, P.S. New
Capital Complex, District- West Tripura
2. Commissioner cum Secretary,
Finance Department, Government of
Tripura, having its office at New Capital
Complex, Agartala-799010, P.S. New
Capital Complex, District- West Tripura
3. The Director,
Higher Education Department,
Siksha Bhawan, Office Lane,
Agartala-799001, P.S. West
Agartala, District- West Tripura
4. Tripura Institute of Technology,
Represented by its Principal,
Narsingarh, Agartala-799009, P.S.
Airport, District- West Tripura
........ Respondent(s)
[2]
In W.P.(C) No.378 of 2024
Sri Sujoy Das,
son of Sri Jaharlal Das, Sekerkote
Purba Para, Bikramnagar, P.S. Amtali,
PIN-799130, District- West Tripura
......... Petitioner(s)
-Versus-
1. The State of Tripura,
represented by the Commissioner
cum Secretary, Higher Education
Department, Government of Tripura,
having its office at New Capital
Complex, Agartala-799010, P.S. New
Capital Complex, District- West Tripura
2. Commissioner cum Secretary,
Finance Department, Government of
Tripura, having its office at New Capital
Complex, Agartala-799010, P.S. New
Capital Complex, District- West Tripura
3. The Director,
Higher Education Department, Siksha
Bhawan, Office Lane, Agartala-799001,
P.S. West Agartala, District- West
Tripura
4. Tripura Institute of Technology,
Represented by its Principal,
Narsingarh, Agartala-799009, P.S.
Airport, District- West Tripura
........ Respondent(s)
In W.P.(C) No.379 of 2024
Sri Piyush Singh,
son of Sri Ram Jiyavan Singh, resident
of Ranipur, Khajagipur, Mirzapur, P.S.
Mirzapur, Uttar Pradesh, 231304
......... Petitioner(s)
-Versus-
1. The State of Tripura,
represented by the Commissioner
cum Secretary, Higher Education
[3]
Department, Government of Tripura,
having its office at New Capital
Complex, Agartala-799010, P.S. New
Capital Complex, District- West Tripura
2. Commissioner cum Secretary,
Finance Department, Government of
Tripura, having its office at New Capital
Complex, Agartala-799010, P.S. New
Capital Complex, District- West Tripura
3. The Director,
Higher Education Department, Siksha
Bhawan, Office Lane, Agartala-799001,
P.S. West Agartala, District- West
Tripura
4. Tripura Institute of Technology,
Represented by its Principal,
Narsingarh, Agartala-799009, P.S.
Airport, District- West Tripura
........ Respondent(s)
In W.P.(C) No.380 of 2024
Sri Prasenjit Debnath,
son of Sri Nanigopal Debnath, resident
of 88, Ghosh Para, Aralia, Agartala-
799004, P.S. East Agartala, District-
West Tripura
......... Petitioner(s)
-Versus-
1. The State of Tripura,
represented by the Commissioner
cum Secretary, Higher Education
Department, Government of Tripura,
having its office at New Capital
Complex, Agartala-799010, P.S. New
Capital Complex, District- West Tripura
2. Commissioner cum Secretary,
Finance Department, Government of
Tripura, having its office at New Capital
Complex, Agartala-799010, P.S. New
Capital Complex, District- West Tripura
[4]
3. The Director,
Higher Education Department, Siksha
Bhawan, Office Lane, Agartala-799001,
P.S. West Agartala, District- West
Tripura
4. Tripura Institute of Technology,
Represented by its Principal,
Narsingarh, Agartala-799009, P.S.
Airport, District- West Tripura
........ Respondent(s)
In W.P.(C) No.381 of 2024
Sri Tamar Das,
son of late Sudhan Das, Bhagat Singh
Para, Shantirbazar-799144, P.S.
Shantirbazar, District-South Tripura
......... Petitioner(s)
-Versus-
1. The State of Tripura,
represented by the Commissioner
cum Secretary, Higher Education
Department, Government of Tripura,
having its office at New Capital
Complex, Agartala-799010, P.S. New
Capital Complex, District- West Tripura
2. Commissioner cum Secretary,
Finance Department, Government of
Tripura, having its office at New Capital
Complex, Agartala-799010, P.S. New
Capital Complex, District- West Tripura
3. The Director,
Higher Education Department, Siksha
Bhawan, Office Lane, Agartala-799001,
P.S. West Agartala, District- West
Tripura
4. Tripura Institute of Technology,
Represented by its Principal,
Narsingarh, Agartala-799009, P.S.
Airport, District- West Tripura
........ Respondent(s)
[5]
In W.P.(C) No.382 of 2024
Sri Manoj Kumar Triveni,
son of Sri Devendra Prasad Sah,
resident of High School Road, Borio,
Sahibganj, Jharkhand-816120
......... Petitioner(s)
-Versus-
1. The State of Tripura,
represented by the Commissioner
cum Secretary, Higher Education
Department, Government of Tripura,
having its office at New Capital
Complex, Agartala-799010, P.S. New
Capital Complex, District- West Tripura
2. Commissioner cum Secretary,
Finance Department, Government of
Tripura, having its office at New Capital
Complex, Agartala-799010, P.S. New
Capital Complex, District- West Tripura
3. The Director,
Higher Education Department, Siksha
Bhawan, Office Lane, Agartala-799001,
P.S. West Agartala, District- West
Tripura
4. Tripura Institute of Technology,
Represented by its Principal,
Narsingarh, Agartala-799009, P.S.
Airport, District- West Tripura
........ Respondent(s)
In W.P.(C) No.383 of 2024
Sri Abhishek Bhattacharjee,
son of Sri Ajoy Nrisingha
Bhattacharjee, resident of Ramnagar,
Road No.8, Agartala-799002, P.S. West
Agartala, District- West Tripura
......... Petitioner(s)
-Versus-
1. The State of Tripura,
represented by the Commissioner
cum Secretary, Higher Education
Department, Government of Tripura,
having its office at New Capital
Complex, Agartala-799010, P.S. New
Capital Complex, District- West Tripura
[6]
2. Commissioner cum Secretary,
Finance Department, Government of
Tripura, having its office at New Capital
Complex, Agartala-799010, P.S. New
Capital Complex, District- West Tripura
3. The Director,
Higher Education Department, Siksha
Bhawan, Office Lane, Agartala-799001,
P.S. West Agartala, District- West
Tripura
4. Tripura Institute of Technology,
Represented by its Principal,
Narsingarh, Agartala-799009, P.S.
Airport, District- West Tripura
........ Respondent(s)
For the Petitioner (s) : Mr. B. R. Bhattacharjee, Sr. Adv.
Mr. S. Datta, Adv.
Mr. S. Saha, Adv.
Mr. S. Banik, Adv.
For the Respondent (s) : Mr. K.N. Bhattacharya, G.A
Mr. M. Debbarma, Addl. G.A
Mr. D. Sarma, Addl. G.A
Mr. K. De, Addl. GA
Date of hearing : 20.06.2025
Date of delivery of : 12.08.2025
Judgment & order
YES NO
Whether fit for reporting : √
HON'BLE MR. JUSTICE S. DATTA PURKAYASTHA
JUDGMENT & ORDER
Common and identical issues being involved, all the
writ petitions were heard together and are being disposed of by
this common judgment.
[2] In W.P(C) No.377 of 2024, the petitioner, namely,
Supantha Paul in pursuance of the advertisement dated
27.10.2017 issued by the National Project Implementation Unit
[7]
(for short, NPIU) for engagement of Assistant Professor for
Engineering Colleges under the Technical Education Quality
Improvement Program (for short, TEQIP) Project, was engaged
as Assistant Professor (Civil Engineering) on contractual basis
for a period of 3 years 9 months vide order No.F.1(4)/TEQUIP-
III/TIT/2017/596 dated 04.01.2018 [Annexure-4 to the writ
petition of W.P.(C) No.377 of 2024] with a consolidated monthly
remuneration of Rs.70,000/-. It was also indicated in the offer
of engagement that such engagement would be for a period till
31.03.2020 or till the project period whichever occur first. The
petitioner states that his salary was Rs.76,491/- and project
ended on 30.09.2021. This case is being treated as the lead
case.
[3] The said project was introduced for improving the
quality of Technical Education in the States/Union Territory and
in this regard, a Memorandum of Understanding [for short,
MoU] was signed on 02.02.2017 [Annexure-2 of the lead case]
between the focus States/Union Territory and Ministry of Human
Resource Development, Govt. of India (for short, MHRD). As per
Section I of the said MoU, the participating States/UT agrees to
some terms and condition and one of such terms is extracted
hereunder:
Section I-
a)..........
[8]
b)...........
................
........
p) Ensure the constitution of a suitably empowered
Faculty/Department/College Management Committee
in the participating faculties/departments/ non-
autonomous constituent colleges of university in the
STATE/UT. The Faculty/Department/College
Management Committee will be responsible for the
overall strategic direction to the
department/faculty/non-autonomous constituent
college. The composition and powers of the
Department/College Management Committee are set
out in the PIP.
In section III of the MOU, following condition was also
set forth-
The MHRD will provide University/Institutional
Development Grants to participating institutes in the
STATE/UT through a Direct Benefit Transfer System.
The Finance Manual describes the functioning of the
Direct Benefit Transfer System, the rules and
procedures governing its use, and the roles and
responsibilities of the MHRD and STATE/UT.
The state of Tripura was a signatory in the MOU.
[4] In W.P(C) No.378 of 2024, the petitioner Sujoy Das,
also in pursuance to the same advertisement dated 27.10.2017
was engaged as Assistant Professor (Electrical Engineering) on a
contractual basis for a period of 3 years 9 months vide order
bearing No.F.1(4)/TEQUIP-III/TIT/2017/585 dated 01.01.2018
with similar terms and conditions, like the petitioner of W.P(C)
No.377 of 2024.
[5] In W.P(C) No.379 of 2024, the petitioner, Sri Piyush
Singh was also engaged in pursuance to the same
advertisement dated 27.10.2017 as Assistant Professor
(Electronics & Communication Engineering) vide offer of
engagement bearing No.F.1(4)/TEQUIP-III/TIT/2017/1452-1453
dated 15.10.2018 with similar terms and conditions like above
said two petitioners.
[6] In W.P(C) No.380 of 2024, the petitioner, namely, Sri
Prasenjit Debnath, was engaged as Assistant Professor (Civil
Engineering) under the same advertisement on contractual basis
vide order bearing No.F.1(4)/TEQUIP-III/TIT/2017/1390-1391
dated 28.09.2018 with similar terms and conditions.
[7] In W.P(C) No.381 of 2024, the petitioner, namely, Sri
Tamar Das was engaged as Assistant Professor (Computer
Science & Engineering) under the same advertisement on
contractual basis vide offer of engagement No.F.1(4)/TEQUIP-
III/TIT/2017/1392-1393 dated 28.09.2018 with similar terms
and conditions.
[8] In WP(C) 382 of 2024, the petitioner, namely, Sri
Manoj Kumar Triveni, was engaged in pursuance to the same
advertisement dated 27.10.2017 as Assistant Professor
(Mechanical Engineering) on contractual basis vide offer of
engagement No.F.1(4)/TEQUIP-III/TIT/2017/589 dated
02.01.2018 with similar terms and conditions.
[9] In W.P(C) 383 of 2024, the petitioner, namely, Sri
Abhishek Bhattacharjee, was engaged as Assistant Professor
(Electronics Engineering) under same advertisement on a
contractual basis vide offer of engagement No.F.1(4)/TEQUIP-
III/TIT/2017/650 dated 05.01.2018 with similar terms and
conditions.
[10] According to all the petitioners, the project ended on
30.09.2021 and on 01.12.2021, another order [Annexure-5 of
the lead case] was issued by the Education (Higher)
Department, Government of Tripura, whereby the engagement
of all the petitioners were extended for 6[six] months w.e.f.
06.12.2021. Thereafter, again vide order dated 12.07.2022
[Annexure-6 of the lead case], their such engagement was
further extended from 12.07.2022 to 11.01.2023. Again, vide
order dated 10.01.2023 [Annexure-7 of the lead case], the
engagement of the petitioners were further extended from
16.01.2023 to 15.07.2023. Thereafter, vide order dated
24.08.2023 [Annexure-8 of the lead case], their engagement
was again extended from 17.07.2023 to 31.12.2023. It was also
mentioned in the said order that no further extension may be
undertaken from State Fund from 31.12.2023. But thereafter
also vide order dated 16.02.2024 [Annexure-9 of the lead case],
the engagement of all the petitioners were extended further
from 20.02.2024 to 20.07.2024. In Annexures-6, 7, 8 & 9 it was
also mentioned that the appointee should have to submit an
undertaking agreeing to the said mode of engagement and that
he/she would not claim any future benefit of regularization,
accruing out of these engagements.
[11] While the project was in force, the Central Project
Advisor of National Project Implementation Unit wrote a letter
on 25.03.2019 [Annexure 10 of the lead case] to the Principal
Secretary, Higher Education Department of Tripura mentioning
that there were huge vacancies in the institutes in Tripura and
therefore, the Principal Secretary was requested to decide the
action plan for filling up such huge vacancies after project
period, with further comment that ideally the qualified TEQIP
faculty (Assistant Professor) should be absorbed in the
institutions through appropriated procedure as they moving to
other institutes shall defeat the purpose of entire process. It
was also further noted that it was agreed in the MOU signed
between the State and MHRD, that well-performing faculty hired
using project funds would be retained/absorbed post project, or
else unchanged, and the faculty retained would be paid
exclusively from the state funds.
[12] The Principal, TIT, Narsingarh also wrote one letter
dated 09.11.2022 [Annexure-11 of the lead case] to the
Director, Education (Higher) Department regarding absorption
of the petitioners alongwith some other Assistant Professors
engaged under TEQIP-III in regular Government service. It was
stated by the Principal that all these faculties were well
qualified, as per AICTE norms of Degree Engineering Faculty
and were rendering their dedicated service to the institute till
date. Their period of contractual service would expire on
11.01.2023. These faculties were engaged in periodical R & D
activities and were contributing to the Institute in teaching
learning activities and other administrative activities. Their
presence in the institute would help to obtain better score in
NBA evaluation for accreditation and in NIRF ranking. Based on
these, it was requested by the Principal to consider absorption
of the said faculties in regular government service, if possible,
by creating supernumerary post so that the students in
particular and the Institute in general may be benefitted.
[13] Learned senior counsel, Mr. B.R. Bhattacharjee
referring to the advertisement under Annexure-1 submits that
due process of recruitment was followed in the case of the
present petitioners and after successfully qualifying the
interview, they were provided with the job. Learned senior
counsel also referring to the MoU executed between the State
and the Union of India further submits that it was an
understanding between both the State of Tripura and the
Central Government to implement the project with the objective
of improvement of technical educational quality in the State with
the financial aid from the World Bank and it was also instructed
by the NPIU to the Principal Secretary of Higher Education
Department of the State of Tripura vide letter dated 25.03.2019
[Annexure-10] requesting him to decide the action plan for
filling up huge vacancies in the institutions of the State after the
project period by absorbing the Assistant Professors engaged
under the project through appropriate procedure as their
moving out to the other institutes would defeat the purpose of
entire process. It was also stated that as per the MoU signed
between the State and MHRD, the well performing faculty hired
using project funds would be retained/absorbed post project by
the State from it‟s own fund.
[14] Learned senior counsel, Mr. Bhattacharjee also relies
on the said letter issued by the Principal, Tripura Institute of
Technology, Narsingarh to the Director of Higher Education
Department dated 09.11.2022 [Annexure-11 of lead case] as
indicated earlier. Learned senior counsel on the basis of above
said two communications submits that the petitioners were
engaged through a selection process after issuing due
advertisement and they were rendering their valuable service to
the institution to the full satisfaction of the authority and even
contributed for betterment of the teaching standard in the said
institution which even yielded better result of the students and
therefore, it was the intention of both the Central Government
in MHRD Department as well as the institutional head of the
Tripura Institute of Technology for their absorption in the
regular service but despite the same, the State Government has
not taken any step in this regard. Mr. Bhattacharjee, Learned
senior counsel addresses in his argument that the selection of
the petitioners were against duly sanctioned post and after the
project period was over, the engagement of the petitioners are
being continued from time to time with an artificial break of
small period after every spell to defeat the claim of
regularization of the petitioners which itself is indicative of
exploitative nature of their engagement by the State. Finally,
learned senior counsel, Mr. Bhattacharjee, to buttress his
submission for regularization of the petitioners in their services,
relies on the following decisions of the Hon‟ble Supreme Court:
[i] Mr. B.R. Bhattacharjee, learned senior counsel relies
on paragraph No.27 of State of Gujarat and others. vs. PWD
Employees Union & ors., (2013) 12 SCC 417. In this case,
some trade unions and labour unions made representation to
the Government of Gujarat for regularization of daily-wage
workers, working since long. The State Government then
constituted a committee under chairmanship of one Minister to
make recommendation after studying the demands, issues and
question of labour unions. After thorough examination of the
wages, work related services and facilities provided to the daily
wage workers who were engaged in the building maintenance
and repairing work in different departments of the State, such
as Road and Building Department, Water Resources
Department, Forest Department, Agriculture Department etc.,
the Committee made recommendations favoring the
regularization. Government accepted the said recommendations
and published the same with the clearance of the Finance
Department. In spite of that, the benefit was not provided to the
daily wage workers of Forest Department. The aggrieved
workers then filed writ petition before the High Court and Ld.
Single Judge held that said resolution of the Government was
applicable to the employees of the Forest Department. Then LPA
was filed by the State which was dismissed by the Division
Bench. State then approached the Apex Court which was also
dismissed and the matter reached finality. In another case,
when some of the daily wage-workers of the Forest Department
moved before the High Court, the matter was referred to the
larger Bench and the three-Judge Bench by its judgment held
that the above said resolution was applicable only to the daily-
wage workers of the Forest and Environment Department
engaged in the work of maintenance and repairing of
constructions in that Department and not to the other daily-
wage workers engaged in other type of works. Meanwhile,
State Government also passed another resolution dated
22.12.1999 that previous resolution dated 17.10.1988 based
one recommendation of the Committee was not applicable to
the daily-wagers of the Forest Department. In that backdrop,
Hon‟ble Supreme Court observed the followings:
24. The daily-wage workers who were engaged in
building maintenance and repairing work in different
departments were already entitled for their work
related facilities. Therefore, what we find is that the
Committee has not limited the recommendation to the
daily-wage workers working in building maintenance
and repairing work in different departments of the
State. The State Government vide its Resolution dated
17-10-1988 has not limited it to the daily-wage
workers working in building maintenance and
repairing work. What we find is that the Resolution
dated 17-10-1988 is applicable to all the daily-wage
workers working in different departments of the State
including the Forest and Environment Department
performing any nature of job including the work other
than building maintenance and repairing work. The
decision of the Full Bench of the Gujarat High Court
in Gujarat Forest Producers, Gatherers and Forest
Workers Union [Gujarat Forest Producers, Gatherers
and Forest Workers Union v. State of Gujarat, (2004) 2
GLH 302 : (2004) 2 Guj LR 1488] and the subsequent
Resolution dated 22-12-1999 issued from the Forest
and Environment Department of the State, in our
opinion are not sustainable, as the intent of the
Resolution dated 17-10-1988 was not properly
explained therein and, therefore, the aforesaid
decision of Full Bench [Gujarat Forest Producers,
Gatherers and Forest Workers Union v. State of
Gujarat, (2004) 2 GLH 302 : (2004) 2 Guj LR 1488]
and Resolution dated 22-12-1999 cannot be made
applicable to the daily-wage workers of the Forest and
Environment Department of the State of Gujarat.
25. In view of the aforesaid observation, we find that
the Full Bench of the Gujarat High Court in Gujarat
Forest Producers, Gatherers and Forest Workers
Union [Gujarat Forest Producers, Gatherers and Forest
Workers Union v. State of Gujarat, (2004) 2 GLH 302 :
(2004) 2 Guj LR 1488] proceeded on erroneous
premises to hold that the Resolution dated 17-10-1988
is applicable only to the daily-wage workers of the
Forest Department engaged in building maintenance
and repairing work. The conclusions in the said
judgment are not sustainable otherwise also. We have
already noticed that the Resolution of the State
Government dated 17-10-1988 is not limited to any
particular department, it applies to all the departments
including Road and Building, Forest and Environment
Department, Water Resources Department, etc. We
have also noticed that the Committee headed by the
Minister of Road and Building Department looked into
the wages of daily-wage workers and work related
facilities provided to the daily-wage workers engaged
in building maintenance and repairing work in
different departments, only for the purpose of its
recommendations. The Committee has not limited the
recommendations amongst the daily-wage workers
engaged in building maintenance and repairing work in
different departments by its aforesaid Resolution. It is
applicable to all daily-wage workers including semi-
skilled workers performing any nature of job, working
in different departments of the State including the
daily-wage workers of the Forest Department
performing work other than building maintenance and
repairing work.
26. The impugned order passed by the learned Single
Judge and the Division Bench arise out of the final
order and judgment dated 29-10-2010 passed in PWD
Employees Union v. State of Gujarat [PWD Employees
Union v. State of Gujarat, Special Civil Application No.
8647 of 2008, order dated 29-10-2010 (Guj)] and
connected matters. The said order has reached finality
in absence of any challenge before the higher court
and hence became binding between the parties i.e. the
appellant State of Gujarat and the respondent
Employees' Union. Therefore, none of the parties
including the appellant State of Gujarat can rely on the
Full Bench decision in Gujarat Forest Producers,
Gatherers and Forest Workers Union [Gujarat Forest
Producers, Gatherers and Forest Workers
Union v. State of Gujarat, (2004) 2 GLH 302 : (2004) 2
Guj LR 1488] to scuttle the decision and direction
given by the Gujarat High Court in PWD Employees
Union v. State of Gujarat [PWD Employees
Union v. State of Gujarat, Special Civil Application No.
8647 of 2008, order dated 29-10-2010 (Guj)] and
connected matters.
27. The decisions in Umadevi [State of
Karnataka v. Umadevi (3), (2006) 4 SCC 1 : 2006 SCC
(L&S) 753] and A. Umarani [A. Umarani v. Registrar,
Coop. Societies, (2004) 7 SCC 112 : 2004 SCC (L&S)
918] were regarding the question concerning
regularisation of employees entered by back door
method or those who were illegally appointed
encouraging a political set up, in violation of Articles
14 and 16 of the Constitution of India. We are of the
opinion that both the aforesaid decisions are not
applicable in the present case i.e. to the members of
the respondent Employees' Union for the following
reasons:
(i) The Secretary, Forest and Environment
Department of the State of Gujarat by his order
dated 3-5-2008 held that initially the entry of
the daily wagers do not suffer from any
illegality or irregularity but is in consonance
with the provisions of Minimum Wages Act.
Therefore, the question of regularisation by
removing the procedural defects does not arise.
(ii) The Gujarat High Court by its judgment
dated 29-10-2010 passed in PWD Employees
Union v. State of Gujarat [PWD Employees
Union v. State of Gujarat, Special Civil
Application No. 8647 of 2008, order dated 29-
10-2010 (Guj)] while noticing the aforesaid
stand taken by the State also held that the
nature of work described in the order dated 3-5-
2008 shows that the daily wage-workers are
engaged in the work which is perennial in
nature.
(iii) The case of A. Umarani [A.
Umarani v. Registrar, Coop. Societies, (2004) 7
SCC 112 : 2004 SCC (L&S) 918] related to
regularization of services of irregular
appointees. In the said case this Court held
that: (SCC p. 112g)
―when appointments were made in
contravention of mandatory provisions of
the Act and statutory rules framed [therein]
and in ignorance of essential qualifications,
the same would be illegal and cannot be
regularized by the State.‖
Finally, the Hon‟ble Supreme Court held that
considering the finding of the Gujarat High Court dated 29-10-
2010 in PWD Employees Union v. State of Gujarat [Special
Civil Application No. 8647 of 2008] and the connected matters
and also the fact that the said judgment was binding between
the parties, the appellants should be directed to grant the
benefit of the scheme as contained in the Resolution dated 17-
10-1988 to all the daily-wage workers of the Forest and
Environment Department working for more than five years. Why
the ratio of Umadevi (3) (supra) was not applicable in the
above said case, was clearly discussed by the Hon‟ble Supreme
Court in said case and as extracted hereinabove.
[ii] Mr. Bhattacharjee also relies on Amarkant Rai
vs. State of Bihar and others, (2015) 8 SCC 265. In this
case, the appellant was appointed temporarily in Class-IV post
of night-guard, on daily wages vide an appointed letter issued
on 04.06.1983 by the Principal of a college namely, Ramashray
Baleswar College affiliated to Lalit Narayan Mithila University,
Bihar. The University took a decision on 04.07.1985 to
regularize the persons who worked for more than 240 days and
as per the letter dated 30.03.1987, the employees who were
working for a period for more than one year needed to be
regularized. Thereafter, the Additional Commissioner cum
Secretary, Bihar also passed a settlement dated 11.07.1989 and
forwarded the same to the Vice Chancellors of the Universities,
stating that the services of the employees working in
educational institutions as per the staff pattern can be
regularized but new appointments against the vacancies present
and in future should not at all be done. The Principal thereafter
requested the Registrar of the University for regularization of
service of the petitioner but the Registrar passed an order of
his termination. One writ petition was preferred by few similarly
situated persons in the High Court and as per direction of the
High Court, the Registrar of the University allowed all the daily
wages workers to resume their jobs from 3.1.2002 and the
appellant also joined the duty. The Principal of the College again
by two letters recommended for absorption of the appellant
against the two vacant posts. He was then given opportunity to
appear before the three-member Committee constituted by the
Vice-Chancellor for consideration of his claim for regularization
of service, but the same was rejected as it was not in
consonance with the Recruitment Rules laid down by the
Constitution Bench judgment in Secretary, State of
Karnataka & others vs. Umadevi (3) and others, (2006) 4
SCC 1 and the same was informed to the appellant by the
Registrar vide letter dated 25.11.2007. The appellant
approached the High Court by way of Writ Petition (Civil) No.
545 of 2009 and the same was dismissed vide order dated
26.08.2011 observing that it was a clear case of violation of
Section 10(6) and Section 35 of the Bihar State Universities Act,
1976 and there was no illegality in the order passed by the
three-member Committee. The Division Bench also affirmed the
judgment of learned Single Judge. In the aforesaid background,
Hon‟ble Supreme Court held as follows:
―8. Insofar as contention of the respondent that the
appointment of the appellant was made by the
Principal who is not a competent authority to make
such appointment and is in violation of the Bihar State
Universities Act and hence the appointment is illegal
appointment, it is pertinent to note that the
appointment of the appellant as night guard was done
out of necessity and concern for the College. As
noticed earlier, the Principal of the College vide letters
dated 11-3-1988, 7-10-1993, 8-1-2002 and 12-7-2004
recommended the case of the appellant for
regularisation on the post of night guard and the
University was thus well acquainted with the
appointment of the appellant by the then Principal
even though the Principal was not a competent
authority to make such appointments and thus the
appointment of the appellant and other employees
was brought to the notice of the University in 1988. In
spite of that, the process for termination was initiated
only in the year 2001 and the appellant was reinstated
w.e.f. 3-1-2002 and was removed from services finally
in the year 2007. As rightly contended by the learned
counsel for the appellant, for a considerable time, the
University never raised the issue that the appointment
of the appellant by the Principal is ultra vires the rules
of the BSU Act. Having regard to the various
communications between the Principal and the
University and also the educational authorities and the
facts of the case, in our view, the appointment of the
appellant cannot be termed to be illegal, but it can
only be termed as irregular.
9. The Human Resources Development, Department of
Bihar Government, vide its Letter dated 11-7-1989
intimated to the Registrar of all the Colleges that as
per the settlement dated 26-4-1989 held between
Bihar State University and College Employees'
Federation and the Government it was agreed that the
services of the employees working in the educational
institutions on the basis of prescribed staffing pattern
are to be regularised. As per sanctioned staffing
pattern, in Ramashray Baleshwar College, there were
two vacant posts of Class IV employees and the
appellant was appointed against the same. Further,
Resolution No. 989 dated 10-5-1991 issued by the
Human Resources Development Department provides
that employees working up to 10-5-1986 shall be
adjusted against the vacancies arising in future.
Although, the appellant was appointed in 1983
temporarily on the post that was not sanctioned by the
State Government, as per the above communication of
the Human Resources Development Department, it is
evident that the State Government issued orders to
regularise the services of the employees who worked
up to 10-5-1986. In our considered view, the High
Court ought to have examined the case of the
appellant in the light of the various communications
issued by the State Government and in the light of the
circular, the appellant is eligible for consideration for
regularisation.
* * *
11. Elaborating upon the principles laid down
in Umadevi (3) case [(2006) 4 SCC 1 : 2006 SCC (L&S)
753] and explaining the difference between irregular
and illegal appointments in State of Karnataka v. M.L.
Kesari [(2010) 9 SCC 247] this Court held as under:
―7. It is evident from the above that there is an
exception to the general principles against
‗regularisation' enunciated in Umadevi
(3) [(2006) 4 SCC 1 : 2006 SCC (L&S) 753] , if
the following conditions are fulfilled:
(i) The employee concerned should have
worked for 10 years or more in duly
sanctioned post without the benefit or
protection of the interim order of any court
or tribunal. In other words, the State
Government or its instrumentality should
have employed the employee and continued
him in service voluntarily and continuously
for more than ten years.
(ii) The appointment of such employee
should not be illegal, even if irregular.
Where the appointments are not made or
continued against sanctioned posts or
where the persons appointed do not possess
the prescribed minimum qualifications, the
appointments will be considered to be
illegal. But where the person employed
possessed the prescribed qualifications and
was working against sanctioned posts, but
had been selected without undergoing the
process of open competitive selection, such
appointments are considered to be
irregular.‖
* * *
13. In our view, the exception carved out in para 53
of Umadevi (3) [(2006) 4 SCC 1 : 2006 SCC (L&S) 753]
is applicable to the facts of the present case. There is
no material placed on record by the respondents that
the appellant has been lacking any qualification or
bore any blemish record during his employment for
over two decades. It is pertinent to note that services
of similarly situated persons on daily wages for
regularisation viz. one Yatindra Kumar Mishra who
was appointed on daily wages on the post of clerk was
regularised w.e.f. 1987. The appellant although
initially working against unsanctioned post, the
appellant was working continuously since 3-1-2002
against sanctioned post. Since there is no material
placed on record regarding the details whether any
other night guard was appointed against the
sanctioned post, in the facts and circumstances of the
case, we are inclined to award monetary benefits to be
paid from 1-1-2010.
14. Considering the facts and circumstances of the
case that the appellant has served the University for
more than 29 years on the post of night guard and
that he has served the College on daily wages, in the
interest of justice, the authorities are directed to
regularise the services of the appellant retrospectively
w.e.f. 3-1-2002 (the date on which he rejoined the
post as per the direction of the Registrar).‖
In this case, the petitioner was working for about 29
years on daily wages basis and he was working against sanction
post from a particular date of 2002. The Human Resource
Department of Bihar also intimated that the services of
employees working in the educational institution on the basis of
staffing pattern should be regularized.
[15] Mr. K. De, learned Addl. GA addresses his argument
that the engagement of the petitioners were temporary in
nature which was reflected in the advertisement itself. Their
engagement as per the advertisement was purely on contractual
basis up to the period of 03 years or up to the end of project
period whichever is earlier and was non-renewable. Even after
expiry of such project period when their engagement were
extended from time to time, Mr. De, learned Addl. G.A argues
that in every such engagement letter, it was specifically
mentioned that they would not claim any future benefit of
regularization in connection with these engagements. Mr. De,
learned Addl. GA also relies on one written undertaking given by
each of the petitioners that their engagement was purely project
related engagement and it did not constitute any kind of
employment or creation of additional teaching post. Mr. De,
learned Addl. GA therefore, submits that the petitioners are now
estopped from claiming regularization of their services when by
an agreement they entered into such engagement consciously
and knowing fully well that their engagement was purely for a
temporary period. Learned Addl. GA also submits that the letter
of MHRD dated 25.03.2019 was neither directory nor
mandatory, rather it was simply a request made to the State
Government for absorption of the petitioners in the service and
it is the prerogative of the State to decide asto whether they are
to be absorbed against regular post or not. Learned Addl. GA
also submits that the petitioners are similarly not entitled to get
the emoluments at par with the regular Assistant Professors on
the principle of "equal pay for equal work" inasmuch as their
selection process was totally different from the selection process
of regular Assistant Professor. According to Mr. De, learned
Addl. GA, all the petitioners were engaged on the basis of only
oral interview whereas for recruitment against regular post, one
is required to qualify the written examination conducted by
Tripura Public Service Condition. Mr. De, to support his
contentions, rely on the following decisions:
[i] S.C. Chandra and others vs. State of Jharkhand
and others, (2007) 8 SCC 279- In this case, it was held that
fixing of pay scale by applying the principle of equal pay for
equal work upsets the constitutional principle of separation of
power unless there is complete and wholesale identity between
two groups. The relevant paragraph No.35 is extracted
hereunder:
―35. In our opinion fixing pay scales by courts by
applying the principle of equal pay for equal work
upsets the high constitutional principle of separation
of powers between the three organs of the State.
Realising this, this Court has in recent years avoided
applying the principle of equal pay for equal
work, unless there is complete and wholesale identity
between the two groups (and there too the matter
should be sent for examination by an Expert
Committee appointed by the Government instead of
the court itself granting higher pay)."
[ii] Govt. of West Bengal vs. Tarun Kumar Roy and
others, (2004) 1 SCC 347- In this case, it was reiterated that
only because the nature of work is same, irrespective of
educational qualification, mode of appointment, experience and
other relevant factors, the principle of equal pay for equal work
cannot apply.
[iii] Orissa University of Agriculture & Technology
and another vs. Manoj K. Mohanty, (2003) 5 SCC 188- In
this case, the principle laid down in State Bank of India vs.
M.R. Ganesh Babu, (2002) 4 SCC 556 was referred in the
following paragraph to hold that equal pay must depend upon
the nature of work done and not mere volume of work:
―13. Yet, in another decision in State Bank of
India v. M.R. Ganesh Babu [(2002) 4 SCC 556 : 2002
SCC (L&S) 568] a Bench of three learned Judges of
this Court, while dealing with the same principle, in
para 16 has expressed that : (SCC p. 563)
―16. The principle of equal pay for equal work has
been considered and applied in many reported
decisions of this Court. The principle has been
adequately explained and crystallized and
sufficiently reiterated in a catena of decisions of
this Court. It is well settled that equal pay must
depend upon the nature of work done. It cannot
be judged by the mere volume of work; there may
be qualitative difference as regards reliability and
responsibility. Functions may be the same but the
responsibilities made a difference. One cannot
deny that often the difference is a matter of
degree and that there is an element of value
judgment by those who are charged with the
administration in fixing the scales of pay and
other conditions of service. So long as such value
judgment is made bona fide, reasonably on an
intelligible criterion which has a rational nexus
with the object of differentiation, such
differentiation will not amount to discrimination.
The principle is not always easy to apply as there
are inherent difficulties in comparing and
evaluating the work done by different persons in
different organizations, or even in the same
organization. Differentiation in pay scales of
persons holding same posts and performing
similar work on the basis of difference in the
degree of responsibility, reliability and
confidentiality would be a valid differentiation.
The judgment of administrative authorities
concerning the responsibilities which attach to
the post, and the degree of reliability expected of
an incumbent, would be a value judgment of the
authorities concerned which, if arrived at bona
fide, reasonably and rationally, was not open to
interference by the court.‖
It was also further observed in paragraph No.15 that
in absence of necessary averments and materials placed on
record, there was no scope to apply the principle of equal pay
for equal work and to issue direction in this regard.
[iv] State of Punjab and others vs. Jagjit Singh and
others, (2017) 1 SCC 148 - Mr. De, learned Addl. G.A. to
strengthen his submission, that for placement in a regular pay
scale, the employee concerned should be a regular appointee,
and an employee appointed on temporary basis cannot claim
regular pay scale, relies on this decision and the relevant
paragraph No. 42.6 of this decision is taken out below:
―42.6. For placement in a regular pay scale, the
claimant has to be a regular appointee. The claimant
should have been selected on the basis of a regular
process of recruitment. An employee appointed on a
temporary basis cannot claim to be placed in the
regular pay scale (see Orissa University of Agriculture
& Technology case [Orissa University of Agriculture &
Technology v. Manoj K. Mohanty, (2003) 5 SCC 188 :
2003 SCC (L&S) 645] ).‖
In this case, it is also held that the temporary
employees are also entitled to get the benefit of "equal pay for
equal work" provided they are to establish that they are
rendering similar duties and responsibilities as are being
discharged by regular employee. The relevant paragraph no.45
of the judgment is relevantly reproduced thus:
―45. We shall now attempt an analysis of the
judgments, wherein this Court declined to grant the
benefit of ―equal pay for equal work‖ to temporary
employees in a claim for pay parity with regular
employees:
45.1. In Harbans Lal case [Harbans Lal v. State of H.P.,
(1989) 4 SCC 459 : 1990 SCC (L&S) 71], daily-rated
employees were denied the claimed benefit under the
principle of ―equal pay for equal work‖, because they
could not establish that the duties and responsibilities
of the post(s) held by them were similar/equivalent to
those of the reference posts under the State
Government.
45.2. In Grih Kalyan Kendra Workers' Union case [Grih
Kalyan Kendra Workers' Union v. Union of India,
(1991) 1 SCC 619 : 1991 SCC (L&S) 621], ad hoc
employees engaged in the Kendras were denied pay
parity with regular employees working under the New
Delhi Municipal Committee, or the Delhi
Administration, or the Union of India, because of the
finding returned in the report submitted by a former
Chief Justice of India that duties and responsibilities
discharged by employees holding the reference posts
were not comparable with the posts held by members
of the petitioner Union.
45.3. In State of Haryana v. Tilak Raj [State of
Haryana v. Tilak Raj, (2003) 6 SCC 123 : 2003 SCC
(L&S) 828] , this Court took a slightly different course,
while determining a claim for pay parity raised by
daily wagers (the respondents). It was concluded that
daily wagers held no post, and as such, could not be
equated with regular employees who held regular
posts. But herein also, no material was placed on
record to establish that the nature of duties performed
by the daily wagers was comparable with those
discharged by regular employees. Be that as it may, it
was directed that the State should prescribe minimum
wages for such workers and they should be paid
accordingly.
45.4. In State of Punjab v. Surjit Singh [State of
Punjab v. Surjit Singh, (2009) 9 SCC 514 : (2009) 2
SCC (L&S) 696], this Court held that for the
applicability of the principle of ―equal pay for equal
work‖, the respondents who were daily wagers, had to
establish through strict pleadings and proof that they
were discharging similar duties and responsibilities as
were assigned to regular employees. Since they had
not done so, the matter was remanded back to the
High Court for a redetermination on the above
position. It is therefore obvious, that this Court had
accepted that where duties, responsibilities and
functions were shown to be similar, the principle of
―equal pay for equal work‖ would be applicable even
to temporary employees (otherwise the order of
remand would be meaningless, and an exercise in
futility).
45.5. It is, therefore, apparent that in all matters
where this Court did not extend the benefit of ―equal
pay for equal work‖ to temporary employees, it was
because the employees could not establish that they
were rendering similar duties and responsibilities as
were being discharged by regular employees holding
corresponding posts.‖
In this case, it is also observed that the ratio
rendered in State of Haryana v. Jasmer Singh, (1996) 11
SCC 77 was irreconcilable and inconsistent with the large
number of judgments, some of which were of larger Benches,
where the benefit of the principle of "equal pay for equal work"
was extended to temporary employees including daily wager.
[16] Mr. K.N. Bhattacharya, learned GA in addition to the
submissions made by Mr. K. De, learned Addl. GA, contends
that if the petitioners are required to be absorbed in regular
service, a scheme has to be framed by the State and Court
cannot direct the State to frame such scheme or policy as the
examination of financial involvement of such regularization is
within the State domain. Learned G.A. submitting that Courts
generally do not interfere with the policy decision of the
Government, relies on a decision of Hon‟ble Supreme Court in
case of State of Kerala and another vs. Naveena Prabhu
and others, (2009) 3 SCC 649. In this case, direct payment
system was introduced by the State Government for the staff of
the College but not for the staff of the attached hospital. In that
perspective, the Hon‟ble Supreme Court observed as under:
―14. The above said order, therefore, makes it crystal
clear that while introducing the direct payment system
by the Government in respect of Padiar Medical
College, such benefit was extended to the members of
the staff of the College whereas the staff of the
hospital attached to the College was specifically
excluded from the applicability of the aforesaid
benefit. This order was never challenged by any of the
respondents herein since such benefit of direct
payment system was not extended to the staff of the
hospital attached to the College. They did not acquire
any status and consequently they acquired no right
being specifically excluded from the benefit thereof.
15. The decision of the Government to exclude the
staff of the hospital attached to the College from the
purview of the aforesaid orders was made specifically
stating that direct payment system is not introduced
by the Government so far as the College hospital is
concerned. The same being a policy decision of the
Government and having not been challenged as either
arbitrary or discriminatory at any stage by the
respondents, thus we are not called upon to scrutinize
the legality and validity of the aforesaid decision.
Besides, the same being a policy decision of the
Government, the same stands as this Court generally
does not interfere with the policy decision of the
Government..‖
This decision was rendered completely in a different
factual background and contexts.
[17] Learned G.A. also relies on another decision of
Division Bench of Delhi High Court in case of Sumit Solanki v.
Energy Efficiency Services Limited, 2023 SCC OnLine Del
3847. In this case, the appellant was appointed on tenure basis
following a selection process after qualifying both written
examination and interview. Thereafter, process of regularization
of their services was initiated by the respondents and the
appellant was also informed about the date of interview.
Meanwhile, the Vigilance Department started enquiry regarding
regularization of outsourced employees and on receiving inputs
from the Vigilance Department, the process of regularization
was stopped and fresh advertisement was issued for recruitment
of regular employees for 235 posts. Then the writ petition was
filed by the appellant which was dismissed by learned Single
Judge. Finally, the Division Bench observed the following at
paragraph No.58:
―58. In light of the aforesaid judgments it can be
safely gathered that the Appellant is not entitled for
any relief of whatsoever by raising the plea of
promissory estoppels. On the contrary, they are
stopped from claiming regularization keeping in view
the terms and conditions of their appointment orders
which categorically provided that their employment is
for a period of 4.5 years and they will not be entitled
to claim absorption/regularization in the services of
EESL. In the considered opinion of this Court, Learned
Single Judge was justified in dismissing the writ
petition.‖
[18] Learned G.A. further argues that being conscious
about the offer of consolidated pay of Rs.70,000/- to the
petitioners, they accepted it and now, they cannot turn around
and claim equal pay for equal work. In this contexts, he relies
on another decision of Hon‟ble Supreme Court in case of Shri
Metongmeren AO (IAS Retd.), State Vigilance
Commissioner, Govt. of Nagaland vs. the State of
Nagaland through the Chief Secretary, Government of
Nagaland and another, (Civil Appeal No. 10034 of 2011
decided on 29.08.2024), wherein the appellant was appointed
as the State Vigilance Officer in the State Vigilance Commission,
Nagaland in pursuance of the Notification dated 21.06.2006 for
a period of 05 years, which was subsequently extended for one
year. In the said notification, it was clearly mentioned that the
appellant being a retired IAS officer would be granted salary
equivalent to the last pay drawn by him as an IAS officer in the
super-time scale minus the pension being drawn by him. Later
on, he started claiming pay scale equivalent to the rank of Chief
Secretary of the State. The Apex Court in that context observed
the followings:
―7. The only argument advanced on behalf of the
appellant in support of the plea for being accorded the
pay scale equivalent to that of the Chief Secretary of
State is that some predecessor State Vigilance
Commissioners were paid the same pay scale as the
Chief Secretary. We feel that merely because at some
point in time, the State Vigilance Commissioners were
paid the same pay scale as the Chief Secretary, that by
itself would not form a precedent so as to entitle the
appellant to claim the same pay scale. The appellant
unreservedly accepted the pay scale offered to him
vide Notification dated 21.06.2006. Having voluntarily
accepted the above offer with open eyes, it does not
lie in the mouth of the appellant to claim that he
should be offered a higher pay scale equivalent to the
pay scale of the Chief Secretary of the State. The
appellant was not obliged to join the post if the pay
scale being offered was not acceptable to him.‖
[19] Learned Addl. G.A., Mr. D. Sarma, representing the
State Respondents in some of the cases, gives much emphasis
on the „undertaking‟ executed by the petitioners and argues that
in deviation of such undertaking, the petitioners cannot claim
the benefit of regularization in service. Mr. Sarma, learned Addl.
GA also relies on the following decisions of the Hon‟ble Supreme
Court to apply the principle of promissory estoppel:
[i] High Court of Punjab & Haryana and others vs.
Jagdev Singh, (2016) 14 SCC 267. This case is related to
recovery of amount overdrawn by a Judicial Officer who went on
compulsory retirement. Said Officer furnished one undertaking
when his pay was initially revised that any payment found to
have been made in excess would be liable to be adjusted. In
that context, Hon‟ble Supreme Court observed that the principle
enunciated in proposition (ii) in State of Punjab vs. Rafiq
Masih, (2015) 4 SCC 334 would not apply to the situation of
that case.
[ii] Mr. D. Sharma, Ld. Addl. G.A. also refers another
decision of Hon‟ble Supreme Court in case of State of U.P. and
others vs. Virendra Kumar and others, 2022 SCC OnLine
SC 1628. This case relates to employees of Uttar Pradesh Avas
Evam Vikas Parishad (for short „the Board‟). On 21st February,
1995, the Board resolved to extend the pensionary benefits to
its employees by replacing the existing Contributory Pension
Scheme (for short „the old pension scheme‟) with a
pension/family pension/gratuity scheme (for short „the new
pension scheme‟). On 16th May, 1996, the State Government
accorded its consent to the new pension scheme subject to the
condition that the Board would not be entitled to seek any
financial assistance for the implementation of the new pension
scheme. Thereafter, by a Resolution dated 5th November, 1997,
the Board approved the new pension scheme. Thereafter, on
26th November 1997, State Government passed an order
staying the implementation of the new pension scheme. The
State Government also appointed a committee of experts to
examine the new pension scheme of the Board. After
considering the report of the committee of experts, the State
Government vide order dated 14th September 1999 vacated the
stay granted earlier by imposing a condition that the scheme
should be funded from the contribution to provident fund made
by the Board and that neither the State Government nor the
Board shall incur financial liability by implementing the new
pension scheme. In that background, Hon‟ble Supreme in
concluding paragraph of the judgment observed that those
officers and employees of the Board who had accepted the
benefit under the old scheme before 7.9.2012 after giving an
undertaking in terms of the office order dated 16.1.2004 would
not be entitled to the benefit of new pension scheme made
applicable as per notification dated 19.5.2009. As it appears,
this decision was rendered in a different contexts.
[20] Learned Addl. G.A. M. Debbarma who is also
representing the State in some cases argues in the same line
like Mr. K. De, learned Addl. G.A.
[21] Mr. Bhattacharjee, learned senior counsel in reply
thereto, submits that any such so called undertaking is illegal
and not binding on the petitioners on the ground of lack of
reasonableness or fairness in the contract between the
employee and the employer, as there was inequality of
bargaining power between the petitioner and the State. When
one is so strong in his bargaining capacity and other is so weak
like the unemployed petitioners, craving for a job facing severe
hardship in the era of unemployment, Mr. Bhattacharjee,
learned senior counsel submits, any such undertaking obtained
by the state instrumentalities taking advantage of their
helplessness, does not pass the taste of fairness in the contract
pushing the weak to the wall. He also in this regard, relies on a
decision of the Hon‟ble Apex Court in a case of Central Inland
Water Transport Corporation Limited and another vs.
Brojo Nath Ganguly and another, (1986) 3 SCC 156
wherein at Paragraph No.89, the followings were observed:
―89..........This principle is that the courts will not
enforce and will, when called upon to do so, strike
down an unfair and unreasonable contract, or an
unfair and unreasonable clause in a contract, entered
into between parties who are not equal in bargaining
power. It is difficult to give an exhaustive list of all
bargains of this type. No court can visualize the
different situations which can arise in the affairs of
men. One can only attempt to give some illustrations.
For instance, the above principle will apply where the
inequality of bargaining power is the result of the
great disparity in the economic strength of the
contracting parties. It will apply where the inequality
is the result of circumstances, whether of creation of
the parties or not. It will apply to situations in which
the weaker party is in a position in which he can
obtain goods or services or means of livelihood only
upon the terms imposed by the stronger party or go
without them. It will also apply where a man has no
choice, or rather meaningful choice, but to give his
assent to a contract or to sign on the dotted line in a
prescribed or standard form or to accept a set of rules
as part of the contract, however unfair, unreasonable
and unconsciousable a clause in that contract or form
or rules may be. This principle, however, will not apply
where the bargaining power of the contracting parties
is equal or almost equal. This principle may not apply
where both parties are businessmen and the contact is
a commercial transaction........‖
[22] Learned senior counsel, Mr. Bhattacharjee, regarding
engagements of the petitioners with small gaps in every spell of
engagement, also relies on Karnataka State Private College
Stop-gap Lecturers Association vs. State of Karnataka
and others, (1992) 2 SCC 29. In this case, teachers were
appointed temporarily for a period of 3 months and continued to
serve for 8 to 10 years on Ad-hoc and fixed pay basis in the
privately managed degree colleges receiving cent percent grant
in aid, controlled administratively and financially by the
Education Department of the state of Karnataka. During said
long period of service, every time they would be given
engagement for a short spell of 3 months with a break of one or
two days after every such spell. Such procedure was followed by
the Management Committee of the colleges based on an
administrative order issued by the Education Department that
any appointment for a period of three months or less, in a
College shall be made, subject to approval of the Director within
one month from the date of appointment by the Management or
such authority as the Management by order, may specify and
that such appointment might be continued for a further period
of not more than three months, with one day‟s break when
selection through the Selection Committee was likely to take
time. These teachers sought for regularization of service and
also regular pay scale like other regular teachers. While dealing
with the aspect of one day gap after every three months,
Hon‟ble Supreme Court held the same to be arbitrary. The
relevant portion of the observation is as follows:
―.........But the direction to re-appoint with one day's
break is not understandable. If the intention was to
differentiate between appointments for more than
three months and others it was a futile exercise. That
had already been achieved by providing two different
methods of selection one by Selection Committee and
other by management. Distinction between
appointment against temporary and permanent
vacancies are well known in service law. It was
unnecessary to make it appear crude. If the purpose
was to avoid any possible claim for regularisation by
the temporary teachers then it was acting more like a
private business house of narrow outlook than
government of a welfare State. Such provisions cannot
withstand the test of arbitrariness....‖
[23] Regarding the emoluments of fixed amount less than
what the regular teachers were paid, at paragraph No.5 of the
judgment, Hon‟ble Apex Court further observed thus:
―5. Another obnoxious part is the emoluments that
have been paid to the temporary teachers. The order
provides that the teacher shall be paid a fixed salary
which is ten rupees less than the minimum payable to
regular employee. This method of payment is again
beyond comprehension. An appointment may be
temporary or permanent but the nature of work being
same and the temporary appointment may be due to
exigency of service, non-availability of permanent
vacancy or as stopgap arrangement till the regular
selection is completed, yet there can be no
justification for paying a teacher, so appointed, a fixed
salary by adopting a different method of payment than
a regular teacher. Fixation of such emoluments is
arbitrary and violative of Article 14 of the Constitution.
The evil inherent in it is that apart from the teachers
being at the beck and call of the management are in
danger of being exploited as has been done by the
management committees of State of Karnataka who
utilised the services of these teachers for 8 to 10 years
by paying a meagre salary when probably during this
period if they would have been paid according to the
salary payable to a regular teacher they would have
been getting much more. Payment of nearly eight
months' salary, by resorting to clause 5, and, that too
fixed amount, for the same job which is performed by
regular teachers is unfair and unjust. A temporary or
ad hoc employee may not have a claim to become
permanent without facing selection or being absorbed
in accordance with rules but no discrimination can be
made for same job on basis of method of recruitment.
Such injustice is abhorrent to the constitutional
scheme."
[24] In the above said case, some of such teachers also
appeared in the regular selection process and obtained higher
marks but were not regularized on the ground that the posts
were reserved posts. Further, the State of Karnataka also
started regularizing of services of ad-hoc teachers in other
Institutions. In this regard, the Apex Court observed that
regularization in other departments might not furnish any basis
for petitioners to claim that the State would be directed to issue
similar order regularizing the petitioners but all the same such
policy decisions of the government in favour of one or the other
set of employees of sister department were bound to raise
hopes and expectations in employees of other departments.
High Court also passed the order of regularization on agreement
with the state respondents in this case. Taking note of all these
factors, the Hon‟ble Supreme Court passed the order that
services of such temporary teachers, who had worked as such
for three years, including the break, should not be terminated
and they should be absorbed as and when regular vacancies
arise.
Discussions and Decision
[25] The petitioners have come forward with two prayers-
firstly, for regularization of their services as Assistant Professor
and secondly or alternatively, for their pay at par with regular
Assistant Professor on the principle of equal pay for equal work.
The first prayer i.e. regularization in service is being examined
first. In these cases, the advertisement issued for engagement
as Assistant Professor [Annexure-1 of lead case] clearly
demonstrates that such engagement was under the TEQIP
project for improving the quality of technical education in the
focus states like North-eastern region, Bihar, Chhattisgarh,
Jharkhand, Madhya Pradesh and some other states and such
engagement was purely on contractual basis for a period up to
03 years or up to the end of the project period whichever is
earlier, and was non-renewable. Selection procedure was based
on interview which includes teaching demonstration. One
undertaking by the selected candidate(s), as per the
advertisement, was required to be submitted on stamp paper of
Rs.100/- as per Annexure-3a of the Advertisement. The
petitioners submitted such undertaking and one of such
condition undertaken by them was that their engagement in
service by the institution was purely project related
arrangement and it did not constitute any kind of employment
or creation of additional teaching post and/or engagement on
any post, existing or otherwise, by the institute. It is also
stipulated therein that all services rendered by them would be
on Principal to Principal basis and it would not create an
Employer-Employee relationship between the temporary faculty
and institute and they would have no right to receive any
employee benefits including but not limited to, health and
accident insurance, life insurance, sick leave and/or vocation
etc. Further, it was fixed that the engagement was purely on
temporary basis and the temporary faculty would not be entitled
to any other benefit of regular/permanent employee and they
would not make any claim of permanency or regularization.
According to the petitioners, their project period expired on
30.09.2021 and the writ petition bearing No. W.P (C) 377 of
2024 was filed on 29.05.2024 i.e. only after 2 years and 8
months or so, there from.
[26] The law relating to regularization in service is
explained and settled by the Constitution Bench of the Hon‟ble
Supreme Court in Umadevi (3) (supra). The prelude of the said
judgment (Para No.3) contains the observation that the
Government considering its economic situation in the country
and the work to be got done, is not precluded from making
temporary appointments or engaging workers on daily wages.
But a regular process of recruitment or appointment has to be
resorted to, when regular vacancies in posts, at a particular
point of time, are to be filled up and the filing up of those
vacancies cannot be done in a haphazard manner or based on
patronage or other considerations. It is also observed that the
regular appointment must be the rule.
[27] Mr. Bhattacharjee, learned senior counsel though
submits that all the petitioners were engaged against sanctioned
post but said assertion has been denied by the respondents in
their argument. Neither any such claim was made in the writ
petitions that such engagements were against the sanctioned
post nor any document is placed in this regard. In the
engagement letters, there is no indication that such
engagements were against any sanctioned post rather same
appears to be purely project based engagement. Even the
undertaking submitted by the petitioners also indicates that it
was purely project related arrangement. At Para-45 of Umadevi
(3) (supra), the followings were further observed by the
Hon‟ble Supreme Court:
―45. While directing that appointments, temporary or
casual, be regularised or made permanent, the courts
are swayed by the fact that the person concerned has
worked for some time and in some cases for a
considerable length of time. It is not as if the person
who accepts an engagement either temporary or
casual in nature, is not aware of the nature of his
employment. He accepts the employment with open
eyes. It may be true that he is not in a position to
bargain--not at arm's length--since he might have
been searching for some employment so as to eke out
his livelihood and accepts whatever he gets. But on
that ground alone, it would not be appropriate to
jettison the constitutional scheme of appointment and
to take the view that a person who has temporarily or
casually got employed should be directed to be
continued permanently. By doing so, it will be creating
another mode of public appointment which is not
permissible.‖
These observations in Umadevi (3) answers the
point raised from the side of the petitioners about the in-
equal bargaining powers of the petitioners. In fact, such plea
of one sided bargaining power was also not raised in the writ
petitions.
[28] At Para-47 of Umadevi (3) (supra), it is also
clarified that principle of legitimate expectation cannot be
applied when a person enters a temporary employment or gets
engagement as a contractual or casual worker and the
engagement is not based on a proper selection as recognized by
the relevant rules or procedure, moreover, when the person
concerned was aware of the consequence of the appointment
being temporary, casual or contractual in nature.
[29] In the present cases in hand, though the petitioners
were engaged through a selection process by issuing
advertisement and holding interview, but such selection process
is not the same selection process as framed by the State under
Article 309 of the Constitution for regular appointment of
Assistant Professors against sanctioned post.
[30] In PWD Employees Union (supra), as relied on by
Mr. Bhattacharjee, learned senior counsel, the claim was
regarding regularization of daily wages worker and the
government itself accepted the recommendation of the
Committee constituted by the State favouring their
regularization. Similarly, in Amarkant Rai (supra) the
concerned person was temporarily appointed as Class-IV
employee on daily wages basis in a college and the university
which was the controlling authority of the said college itself took
the decision to regularize the persons who were working more
than 240 days. Therefore, both the cases stand on different
footings. The present cases are also not of such a nature where
the petitioners‟ services are being derived by the State for
decade(s) in the nature of exploitative employment. The
petitioners being highly educated person cannot be said that
without knowing the nature of the employment they consented
to be engaged as temporary faculty.
[31] The Project Implementation Plan [PIP] under caption
"2.6 Sustainability of the project institution" mentions that the
faculty recruitment envisaged for each focus state would build a
system for recruiting and retaining adequate numbers of high-
quality faculty and the plan would be expected to provide a long
term solution to the problem of faculty recruitment and
retention (not just during the project period). Perhaps, based on
such clause, the Central Project Advisor vide his letter dated
25.03.2019 [Annexure-10 to the writ petition] requests the
Principal Secretary, Higher Education Department, Government
of Tripura to decide the action plan for filling huge vacancies in
the institutes in the State after the project period and that
ideally the temporary faculty shall be absorbed in such
institutions through appropriate procedure as they moving out
to other institutes shall defeat the purpose of entire process. It
is also further noted in that letter that well- performing faculty
hired using project funds will be retained/absorbed post project
or else unchanged and the faculty retained will be paid
exclusively from state funds. The Central Project Advisor also
requests the Principal Secretary of Higher Education to send a
concrete action plan/state government policy in this regard.
[32] What appears from above said communication, it is
for the State now to decide the action plan, if any, for
absorption of well-performing temporary faculties as regular
Assistant Professor. It is a matter of policy of the State
Government now to chalk out their action plan based on the
understanding between them and National Project
Implementation Unit. When no such assurance was placed by
the employer in the Advertisement while engaging the
petitioners in the service, the petitioners have not accrued any
legal right to claim regularization only based on the inter-
departmental correspondence.
[33] Art.16 of the Constitution catalogues the right of
equal opportunity in public employment as fundamental right.
Similarly, Art.39 of the Constitution obliges the State to secure
that all the citizens have their adequate means to livelihood.
Therefore, it is also required to be kept in mind that
regularization of few persons in the service who have not come
through the regular channel of employment following the rules
and procedure as framed under Art.309, deprives other job
aspirants in participating in the selection process, who have
their right of equal opportunity in public employment. In
Umadevi (3) (supra), this aspect has also been dealt with in
the following language in paragraph No.51:
―It will be more consistent with that policy if the
courts recognise that an appointment to a post in
government service or in the service of its
instrumentalities, can only be by way of a proper
selection in the manner recognised by the relevant
legislation in the context of the relevant provisions of
the Constitution. In the name of individualising
justice, it is also not possible to shut our eyes to the
constitutional scheme and the right of the numerous
as against the few who are before the court. The
directive principles of State policy have also to be
reconciled with the rights available to the citizen
under Part III of the Constitution and the obligation of
the State to one and all and not to a particular group
of citizens."
Considering all aspects, the claim of the petitioners
for their regularization in service cannot be accepted and
therefore, the prayer for regularization is decided in the
negative.
[34] Now, dealing with the issue of claim for „equal pay for
equal work‟, it is no longer res-integra that to apply the principle
of equal pay for equal work‟, there should be a complete
wholesale identity between the two groups. Such wholesale
identity depends on different factors and it cannot be
adjudicated by mere volume of work. The functions of two
groups may be the same but the responsibility may be different.
There may also be differences regarding reliability as well as
their selection process.
[35] In Jagjit Singh (supra) as relied on by Mr. De,
learned Addl. G.A., it was also observed that for placement in
regular pay scale, the claimant has to be a regular appointee
and the claimant should have been selected on the basis of a
regular process of recruitment and further to apply the principle
of equal pay for equal work, the petitioners are required to
establish the same through their pleadings and prove that they
were discharging similar duties and responsibilities as were
assigned to regular employee.
[36] A three-Judge Bench of Hon‟ble Supreme Court in
State of Haryana and others. vs. Charanjit Singh and
others, (2006) 9 SCC 321 observed that a mere nomenclature
designating a person as say a carpenter or a craftsman is not
enough to come to the conclusion that he is doing the same
work as another carpenter or craftsman in regular service. It
cannot be judged by the mere volume of work. There may also
be qualitative difference as regards reliability and responsibility.
Functions may be the same but the responsibilities may be
different. The relevant paragraph No.19 of the said decision also
excerpted hereunder:
19. Having considered the authorities and the
submissions we are of the view that the authorities in
the cases of Jasmer Singh [(1996) 11 SCC 77 : 1997
SCC (L&S) 210 : AIR 1997 SC 1788 : (1997) 2 LLJ
667], Tilak Raj [(2003) 6 SCC 123 : 2003 SCC (L&S)
828], Orissa University of Agriculture &
Technology [(2003) 5 SCC 188 : 2003 SCC (L&S) 645 :
(2003) 2 LLJ 968] and Tarun K. Roy [(2004) 1 SCC 347
: 2004 SCC (L&S) 225] lay down the correct law.
Undoubtedly, the doctrine of ―equal pay for equal
work‖ is not an abstract doctrine and is capable of
being enforced in a court of law. But equal pay must
be for equal work of equal value. The principle of
―equal pay for equal work‖ has no mechanical
application in every case. Article 14 permits
reasonable classification based on qualities or
characteristics of persons recruited and grouped
together, as against those who were left out. Of
course, the qualities or characteristics must have a
reasonable relation to the object sought to be
achieved. In service matters, merit or experience can
be a proper basis for classification for the purposes of
pay in order to promote efficiency in administration. A
higher pay scale to avoid stagnation or resultant
frustration for lack of promotional avenues is also an
acceptable reason for pay differentiation. The very fact
that the person has not gone through the process of
recruitment may itself, in certain cases, make a
difference. If the educational qualifications are
different, then also the doctrine may have no
application. Even though persons may do the same
work, their quality of work may differ. Where persons
are selected by a Selection Committee on the basis of
merit with due regard to seniority a higher pay scale
granted to such persons who are evaluated by the
competent authority cannot be challenged. A
classification based on difference in educational
qualifications justifies a difference in pay scales. A
mere nomenclature designating a person as say a
carpenter or a craftsman is not enough to come to the
conclusion that he is doing the same work as another
carpenter or craftsman in regular service. The quality
of work which is produced may be different and even
the nature of work assigned may be different. It is not
just a comparison of physical activity. The application
of the principle of ―equal pay for equal work‖ requires
consideration of various dimensions of a given job.
The accuracy required and the dexterity that the job
may entail may differ from job to job. It cannot be
judged by the mere volume of work. There may be
qualitative difference as regards reliability and
responsibility. Functions may be the same but the
responsibilities make a difference. Thus normally the
applicability of this principle must be left to be
evaluated and determined by an expert body. These
are not matters where a writ court can lightly
interfere. Normally a party claiming equal pay for
equal work should be required to raise a dispute in
this regard. In any event, the party who claims equal
pay for equal work has to make necessary averments
and prove that all things are equal. Thus, before any
direction can be issued by a court, the court must first
see that there are necessary averments and there is a
proof. If the High Court is, on basis of material placed
before it, convinced that there was equal work of
equal quality and all other relevant factors are fulfilled
it may direct payment of equal pay from the date of
the filing of the respective writ petition. In all these
cases, we find that the High Court has blindly
proceeded on the basis that the doctrine of equal pay
for equal work applies without examining any relevant
factors.
[37] Another, three-Judge Bench of Hon‟ble Supreme
Court in State of Madhya Pradesh and others vs.
Ramesh Chandra Bajpai, (2009) 13 SCC 635 also held
as under:
15. In our view, the approach adopted by the learned
Single Judge and the Division Bench is clearly
erroneous. It is well settled that the doctrine of equal
pay for equal work can be invoked only when the
employees are similarly situated. Similarity in the
designation or nature or quantum of work is not
determinative of equality in the matter of pay scales.
The court has to consider the factors like the source
and mode of recruitment/appointment, qualifications,
the nature of work, the value thereof, responsibilities,
reliability, experience, confidentiality, functional need,
etc. In other words, the equality clause can be invoked
in the matter of pay scales only when there is
wholesale identity between the holders of two posts.‖
[38] The pleadings of the petitioners, in the present
cases in hand, are bereft of sufficient particulars to compare
them with the regular Assistant Professor for the purpose of
applying the principle of equal pay for equal work. There are
only few bald statements made in the pleading that the
duties and nature of work petitioners are indistinguishable
from permanent posts and they also possess similar
qualification like regular Assistant Professors. But such
assertions are not sufficient enough to apply principle of
equal pay for equal work and to grant them regular pay
scale of a Assistant Professor recruited through a regular
process of selection as per the recruitment rules. Moreover,
it also appears at the first blush that the recruitment
procedure of the present petitioners and the recruitment
procedure of regular Asstt. Professors are quite different.
Therefore, the principle of equal pay for equal work also
cannot be applied here.
[39] In view of the above discussions, the writ
petitions are dismissed being devoid of any merit. However,
this order will not stand as a bar in case the State
Government takes initiatives for the regularization of the
services of the petitioners by framing any scheme in the
light of their understanding with the NPIU or the Union of
India, of course within the parameters of the constitutional
framework of public employment.
All the writ petitions are accordingly disposed of.
Interim application(s), if any, also stands disposed of.
JUDGE
SUJAY GHOSH Digitally signed by SUJAY GHOSH
Date: 2025.08.13 17:10:49 +05'30'
Sujay
