Basanta Das Bairagya v. The Regional Manager, Hooghly Region, UBI & Ors.

affidavit affirmed on 05.01.2024 that the records were “not traceable”. The conduct on behalf of the Bank according to the Learned Advocate representing the petitioner had been of extreme carelessness and exhibiting mala fides suggesting an entrenched attempt to deny the petitioner his rightful absorption.

#15. It was further urged there could be no principle whereby employee should be made to suffer for the long denial or omission on the part of the administrative authority. The petitioner aged beyond 60 years 6 transgressing the age of regular appointment should not be denied relief merely because the authorities failed to act when they were required to.

#16. It was further contended that this Court under Article 226 possessed the power to mould relief based on subsequent events established where injustice had persisted for decades. Accordingly, the Learned Advocate representing the petitioner claimed the petitioner fulfilling all eligibility conditions since 1992 being protected by circulars constitutional guarantees and judicial directions was entitled to recognition of his rightful claim to be absorbed as subordinate staff with all consequential benefits from dates the circulars mandated.

#17. The Learned Advocate representing the respondents submitted that the relief sought by the petitioner was fundamentally unsustainable both in fact and law. The submissions of the Learned Advocate representing respondents are categorized as follows:- i. Appointment not by the Bank but by the employees committee:- It was urged that the petitioner’s engagement dated 06.07.1980 emanated not from the United Bank of India (now Punjab National Bank) but from the United Bank of India Employees’ Association, a distinct entity with no statutory or contractual nexus in the matter of recruitment. The appointment letter itself demonstrated that the petitioner never entered the service of a Bank, hence, no vestige right by absorption or regularization could flow from an appointment that the Bank never made. ii. No statutory obligation to run canteens or absorption of canteen boys:-Reference was placed on the authoritative precedence of the 7 Hon’ble Supreme Court in State Bank of India and Others Vs. State Bank of India Canteen Employees’ Union, (2005) 5 SCC 531 wherein it was held that the employees of a canteen run by independent canteen committees are not employees of the Bank. It was further submitted by the Learned Advocate representing the respondents that the Bank had no statutory, contractual or an award based obligation to run canteens or absorb any person working therein. The Bank neither supervised nor controlled the functioning of the canteens; subsidy or oversight of utilization thereof could not metamorphose an autonomous canteen worker into a bank employee. iii. The 1992 and 2003 circulars were one-time exceptions:- It was further emphasized that the 1972 circular, issued by the erstwhile United Bank of India allowed eligible canteen boys through structured recruitment process, involving advertisements, tests and interview. The petitioner did apply, but was not considered. The circular itself stipulated finality of the Bank’s decision in accepting or declining appointment. No perpetual right survived. Similarly, a circular issued in 2003 and 2011 were also exceptional schemes intended only to absorb eligible candidates in a phased manner against existing vacancies and only till exhaustion of such eligible candidates. The benefit was not intended to become an evergreen conduit to claim regular service. 8 iv. Canteen Committee’s independent status:- The Canteen Committee was an autonomous entity comprising bank staff themselves and was responsible for recruitment, conditions of service and payment of wages to the canteen boys. Consequently, the petitioner’s claim to be treated as Bank staff described as legally misconceived. v. Ban of recruitment and merger of the Bank:- The Learned Advocate submitted R.B.I.’s letter dated 17.03.1999 imposed a ban on recruitment further eroding any possibility of petitioner’s absorption. Moreover, when the merger of United Bank of India into Punjab National Bank w.e.f. 01.03.2020, no scheme exists under the successor institution for appointment or absorption of canteen boys as support staff. vi. The petitioner not suitable and having crossed age of sixty:- It was pointed out that the petitioner had presently crossed the age of sixty years rendering any claim of fresh consideration wholly infructuous. vii. The Learned Advocate for the respondent submitted service jurisprudence, beyond its disciplined boundaries could not be stretched to resurrect claims that have naturally extinguished with time and age. viii. The Learned Advocate representing the respondents further argued the petitioner’s reliance upon the rent control and eviction wholly alien to the factual and legal matrix of the present dispute. Such precedents cannot be transplanted into a domain governed 9 by service rules and constitutional limitations. The allegations of mala fide and/or arbitrariness had been formally rejected stating absence of entitlement could not be construed as presence of malice. ix. The respondent Bank acted strictly within the confines of law and the petitioner cannot by invoking equitable sympathy circumvent statutory requirements. Moreover, the inability to produce certain decades of old documents was attributable to certain administrative owing to efflux of time, not to any deliberate attempt to suppress material which cannot otherwise create substantive right which did not exist.

#18. The circumspection of the pleadings, the documents placed, the chequered history of the engagement and the competing submissions relate to reassess certain principles which forbid the creation of legal right which never existed and which demand the sympathy, however compelling, must yield and conform to the provisions of law.

#19. The factual foundation of the petitioner’s entry into service was indubitably through an employees’ association, constituted by canteen committee and autonomous entity in the functioning and not connected to the statutory recruitment framework of the Bank. The petitioner’s claim of absorption into the subordinate cadre does initially lacked the foundational employer-employee relationship which had been the sine qua non one for invoking Article 14 and 16 of the Constitution of India in matters of public employment. 10

#20. The argument that prolonged service as a canteen boy ripens into a legitimate expectation or crystallized absorption cannot be accepted. Legitimate expectation cannot override statutory recruitment schemes nor compel the State to create posts or alter the structure of public employment.

#21. The Supreme Court pronounced in State Bank of India Canteen Employees’ Union (supra) leaves no ambiguity. Workers engaged by canteen committees do not become employees of the Bank by any process of inference or equity.

#22. Equally untenable, the plea of mala fide, the petitioners grievance stem from the absence of legal entitlement, not from the administrative hostility. Failure to produce decades old records though regrettable, cannot create substantive right ex-nihilo. The petitioner having crossed the age of superannuation, legally disadvantages his claim. Even if right had survived, which, however, did not fructify, rendered the claim to be infructuous by efflux of time. Courts cannot breathe life into a claim that has extinguished by its own terms. Judicial power cannot compel resurrection of a career that statutorily stands concluded. The petitioner’s right never accrued to be vested in nature and cannot be sustained in perpetuity.

#23. The slackness and negligence on the part of the respondent-Bank is deprecating and is disapproved. The schemes in question did intend to absorb the Canteen Boys as sub-ordinate staff, though they could not have been termed as bank employees prior to such absorption in accordance to the schemes for lack of employer-employee relationship.

#24. The respondent-Bank nonetheless had secured the right to mandate final 11 decision of acceptance or refusal of a candidature, however, did not exercise appropriate measure to inform the petitioner of its reasons for non-consideration of candidature. Invitation of an application under the scheme did not crystallize into a vested right, but the petitioner’s application should have been assessed in an impartial manner at par with similar canteen boys. Administrative lapses however in strict terms cannot be equated with mala fides or hostility.

#25. The schemes in question to have expired its period of validity and effectively cannot be wreaked up at the stage when the petitioner has crossed the age of 60 years. Administrative indecisiveness, reckless inaction and remissness on the part of the respondent-Bank disentitled the petitioner to be absorbed in the public post.

#26. The respondent-Bank should have informed the petitioner the reason of its refusal of candidature under the schemes though it accepted the service of the petitioner on numerous occasions as a ‘Badli’ sweeper etc.

#27. In this situation, the petitioner’s long service though earnest and humble, cannot by fiat be transferred into public post. A court of equity does not convert sympathy into constitutional rights in favour of the petitioner; its compassion must remain tethered to legality. The writ court cannot regularize outside of the statutory framework violating Articles 14 and 16 of the Constitution of India unsettling the discipline of the public recruitment.

#28. In view of the above discussions, the instant writ petition being WPA 16682 of 2014 stands dismissed.

#29. There is no order as to costs. 12

#30. Photostat certified copy of this order, if applied for, be given to the parties on priority basis on compliance of all formalities. (Ananya Bandyopadhyay, J.)