Smt. Nupur Basu v. The Union of India and Others

Judgment

#1. This instant writ petition, filed by the Petitioner, is the second round of litigation seeking regularisation of her service along with consequential benefits.

#2. The brief facts of the writ petitioner is that she was appointed as a Secretarial Assistant at Indian Institute of Management, Calcutta (in short IIMC) on 18th December, 2007 with due approval from the Ministry of Human Resource Development (in short MHRD). Her appointment was initially on contractual basis for a period of two years i.e. from 18.12.2007 to 17.12.2009. Thereafter, her contractual appointment was renewed time to time without any break in service till 25.12.2018. During this period, the Writ Petitioner discharged her duties alongside other regular employees.

#3. However, on 16th August, 2018, IIMC issued a fresh letter of engagement effective from 1st January, 2018 upto December 31,2018 which arbitrarily and retrospectively nullified her previous service. Being aggrieved by the said engagement letter dated 16.08.2018, the petitioner earlier filed a writ petition being Writ Petition No. 3 24205/2018 with prayer to regularise the service from the date of initial appointment, in accordance with law.

#4. The said writ petition was heard and disposed of by Co- Ordinate Bench of this Court vide order dated 13.12.2018 with following direction as inter alia: - “Accordingly, the said impugned proposal dated 16th August, 2018 stands withdrawn and cancelled. Mr. Bari, learned Counsel for the petitioner further submits that since the petitioner has been serving the respondent Institute for about 11 years and her performance has been impeccable, she should be considered for permanent absorption. I grant liberty to the petitioner to make a prayer for permanent absorption to the respondent no. 6 in course of tomorrow. The respondent no. 6 shall take a reasoned decision on such representation of the petitioner in accordance with law as early as possible, preferably by 25th December, 2018, since that is the date when the contractual tenure of the petitioner expires. The decision so taken shall be communicated to the petitioner on the day itself. 4 Needless to say, that the performance of the petitioner over last 11 years shall be considered by the respondent and also given the fact that she is 59 years old, it is expected that the respondent no. 6 shall consider the petitioner’s case sympathetically. No useful purpose will be served by keeping the writ petition pending. Since no affidavit has been called for, allegations contained in the writ petition are deemed not to be admitted by the respondents.

WP No. 24205 of 2018 is, accordingly, disposed of.”

#5. In pursuant to the said direction passed by the Co-ordinate Bench of this Court, the writ petitioner submitted her representation with a prayer for permanent absorption in service on 14.12.2018. The said representation was duly received by the office of Board of Governors, Indian Institute of Management, Calcutta. Prior to that, the order passed by the Co-ordinate Bench was also duly communicated upon respondent concerned. The communication was received by respective office.

#6. The time limit granted by the Hon’ble Co-ordinate Bench for taking appropriate action expired on 25.12.2018. However, no 5 decision was taken by the respondent no. 6 in terms of order passed by the Hon’ble Co-ordinate Bench within the stipulated period. On

24.12.2018, the Acting Director of IIM Calcutta informed that the representation dated 14.12.2018 had been placed before the Board of Governors for consideration and that the decision of the Board shall be communicated without any indication and/or mentioning regarding further continuation of service to the petitioner as her tenure of service was expiring on 25.12.2018. No reference was made regarding the continuation of the service beyond 25.12.2018, which marked the end of her contractual tenure. Despite the impending deadline, no reasoned decision was communicated to the petitioner. Such inaction and failure on the part of the respondent constitute a deliberate, contumacious and intentional violation of the order passed by the Hon’ble Co-ordinate Bench. Consequently, the petitioner’s service was discontinued on 25.12.2018.

#7. After expiry of 2 months, the petitioner was served with a letter dated 05.03.2019 wherein the decision of the Board of Governors of IIM, Calcutta was communicated. The said decision, structured in, containing eight points, denying the renewal of the engagement of the petitioner but also rejected her legitimate and 6 justifiable claim for regularisation/absorption of her service. Accordingly, the writ petitioner has filed this Writ Petition contending herein that the impugned decision of the respondent in letter dated

05.03.2019 is liable to be set aside for the following reasons as follows:- a) In the letter issued to MHRD on January 31, 2006 wherein it was specifically mentioned that "there are presently 12 posts of Stenographer in the grade of Rs. 5000-150-8000/ - lying vacant. Accordingly, you have proposed to engage 6 (six) secretarial assistants urgently where the minimum emoluments Stenographer's post would work out to Rs. 12,000/- (approx.) per month which was at per with the regular employees in accordance with the 5th CPC. The breakup of the financial involvement was clearly mentioned and duly approved by the MHRD and communicated to the Director, IIM Calcutta vide their letter bearing no. F. 1- 8/2006-ST. V dated May 2, 2006. In case of Faculty / Non-Faculty ratio, as per the guideline of MHRD, student and faculty ratio should be 1:10 and the Faculty and Non-Faculty ratio should be 1:1.1. Present student strength in IIM Calcutta is 1260. Thus, mathematical calculation comes to Faculty strength is 1260 / 10 = 126. Simultaneously, Faculty and Staff ratio should be 126 X 1.1 = 139. The present regular non-teaching strength in the Institute is around 7 90 (including officers), so the absorption of all the 23 contractual employees could be accommodated easily. This is nothing but a misrepresentation of the fact with an intention to oust the petitioner from the zone of consideration. b) That letter issued to Director by MHRD on May 2, 2006 wherein it was clearly mentioned in the subject of letter "Conversion of 12 vacant posts of stenographers to 6 posts of Secretarial Assistants" so the re-designation words are not applicable for the posts of Secretarial Assistants. Though these communications are on record and still the respondents are so adamant that they are denying the lawful claim of the petitioner at the cost of misrepresentation and incorrect statement of facts. c) That in the letter issued to the MHRD on January, 31, 2006 wherein entire breakup was made for the counterpart of the post even commitment was given to the MHRD that "Additionally, other statutory and welfare benefits, as applicable, would be given to such staff". On the basis of that MHRD had approved the case in their letter No. F. 1-8/2006-TS. V dated May 2,

#2006. Till date the petitioner does not get any statutory benefits from the Institute. It is pertinent to mention that the Institute authority has in the motive of disobeying its superiors. Rather the IIMC has vitiated the spirit of the Art. 21 and 23 of the Constitution of India upon seer 8 denial of the legitimate claim of the petitioner that too at the verge of her age of superannuation. However, the IIMC has allowed person who had already crossed 60 years of age, but the case of the petitioner in spite of all favourable conditions not been considered as the petitioner did not agree to the proposal as made by the respondent in memo dated 16.08.2018.

#8. Petitioner further states that there is neither been any resignation tendered on the part of the petitioner nor any formal order of termination of service, for which the respondent authority cannot freshly engage the petitioner in the same post. Moreover, the initial appointment was granted as per the decision of the Board upon being approved by the concerned Ministry for which the Director in-charge of the said institution does not have any authority and jurisdiction to overlap and override such decision of the Ministry and thereby in an absolutely arbitrary and capricious manner engage the petitioner freshly by giving a goby to the initial appointment and the consequential benefits including any service, emoluments/ service benefits and most importantly the aspect of regularization for discharging of continuous service for more than ten years has already been under consideration of the concerned Ministry in compliance with the judgment of The Hon'ble Apex Court passed in Secretary, 9 State of Karnataka & Ors. Vs. Umadevi (3) & Ors.1. Therefore, such impugned communication dated 05.03.2019 is absolutely without jurisdiction and a glaring of colourable exercise of power by acting de hors the procedures of law and travelling beyond the legal competence and jurisdiction of the concerned institution. Hence, this Writ Petition. SUBMISSION ON BEHALF OF THE PETITIONER:

#9. Learned counsel appearing on behalf of the petitioner strenuously argued and submitted that the IIM, Calcutta had offered contractual appointment to the post of Secretarial Assistant to the petitioner after issuing letter of appointment dated 18th December, 2007 upon following due process and Rules of Recruitment on a contractual basis for a period of two years subject to further extension and renewal of contract along with admissible service benefits.

#10. The service was extended and benefits were enhanced from time to time. The service of the petitioner was lastly extended on 1 2006 (4) SCC 1 10 December 13, 2017 on the same post for a further period of one year till 25th December, 2018 at a revised monthly emolument of Rs. 31,635/-.

#11. The Ministry of Human Resource Development (MHRD), Government of India had approved contractual employment under the said Institution in pay role of IIM, Calcutta preferred an application before the concerned State authority under the Ministry of Human Resource Development, Government of India by stating that all such employees who were recruited against permanent vacancies by adhering to the Rules of Recruitment and Procedure were offered consolidated by initially which was fixed as per the scale of pay in course of regular employee for the particular post on August

#12. The petitioner also highlighted to the fact that despite the prolonged and uninterrupted period of service rendered by such employees but neither had been regularised nor granted adequate service benefits. In contrast, several other IIM had framed specific rules for regularisation of employees under the pay role of the concerned Institution. 11

#13. It was further submitted that the concerned Ministry made a communication on September 29, 2015 to the said Institution for taking appropriate and necessary action the matter of regularisation of the contractual employees in the pay role of Institution working for more than 8 years without any break of service. The Memorandum was issued vide F.N.-19-1/2014-Skt. II dated 2nd May, 2015 issued by the concerned Ministry to all the Heads of Institutes or organisations under the Ministry of Human Resource Development by referring to the judicial proceedings. In view of the Memorandum also cautioned against further appointments to sanctioned post without adhering to prescribe recruitment process.

#14. The petitioner was appointed against a sanctioned vacant post by following proper recruitment procedures, including public advertisement, formal selection process and with the prior approval of the concerned Ministry. Therefore, having rendered continuous and satisfactory service forover ten years of, she has legitimate expectation of regularisation. Her performance was never found wanting, nor was her appointment questioned as being illegal. Hence, she fulfilled all the essential criteria for regularisation. The issuance 12 of the engagement letter dated 16th August, 2018, arbitrarily nullified her past service, is wholly unjustified, arbitrary, and legally unsustainable. It disregards her appointment since December 2007, and violates the decisions of competent authorities.

#15. It was further submitted by the learned counsel that despite the essential and permanent nature of her role, she continued to remain on a contractual basis. Trusting her consistent performance and dedication to the organization, she hoped for eventual regularization. However, her service was abruptly discontinued after 11 years, which not only undermines her trust in the fairness of the institution but also exemplifies a gross misuse of authority.

#16. It was further contended that her continuous and exemplary service for over a decade gives rise to a legitimate expectation of regularization. Her work is indispensable for the smooth functioning of the IIMC and denying her permanency, despite fulfilling perennial responsibilities, constitutes a gross violation of fairness and equity.

#17. It was also argued that the principle of equality enshrined in the Constitution prohibits arbitrary discrimination between 13 contractual and permanent employees performing identical duties. The denial of regularization amounts to unjust and unequal treatment, violating Articles 14 and 21. Despite fulfilling all criteria and consistently receiving service extensions in service based on performance, the petitioner was given with termination instead of regularization. This act of terminating a loyal and capable employee is both unjustified and devoid of compassion.

#18. The Learned counsel further argued that denying regularization infringes upon Articles 14 and 21 of the Constitution, depriving her of equal treatment and the right to livelihood. The petitioner underscores the financial insecurity and absence of social benefits-pension, medical coverage, and gratuity that have resulted from her contractual status. This instability denies her the dignity and security she rightfully deserves after years of dedicated service.

#19. The continued refusal of regularization not only harms the petitioner but also perpetuates inequality and lowers morale among similarly placed employees. Such actions reflect a disregard for the workforce's welfare and justice. The arbitrary denial of regularization 14 constitutes a breach of Articles 14 (Equality before the law), 19(1)(g) (Right to livelihood), and 21 (Protection of life and personal liberty).

#20. The Learned counsel emphasizes the Hon'ble Supreme Court's judgment delivered in Jaggo v. Union of India2 which recognized the indispensable nature of long-serving employees' work and condemned the misuse of temporary employment labels for roles that are essential and recurring. The judgment affirmed that even "irregular" appointments, if not "illegal," warrant regularization under the principles established in the Uma Devi (Supra) case.

#21. Learned counsel has further placed reliance upon the following judgments to support of his contention for regularisation of the petitioner’s service as under: - i) Secretary, State of Karnataka and Ors. Vs. Umadevi (3) and Others3 particularly paragraphs nos. 43, 44, 47, 50 to 53; ii) State of Karnataka and Others Vs. M.L. Kesari and Others4 particularly paragraphs nos. 9 to 11;