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Calcutta High Court (Appellete Side)
Smt. Piyali Chowdhury vs West Bengal State Election Commission & … on 5 May, 2026
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IN THE HIGH COURT AT CALCUTTA
CONSTITUTIONAL WRIT JURISDICTION
APPELLATE SIDE
Present:
The Hon'ble Justice Ananya Bandyopadhyay
W.P.A. 22568 of 2016
Smt. Piyali Chowdhury
-Vs-
West Bengal State Election Commission & Ors.
With
WPA 23774 of 2016
Smt. Moujhuri De
-Vs-
West Bengal State Election Commission & Ors.
For the Petitioner : Mr. Manjit Singh
Mr. Koushik Chatterjee
Mr. Biswajit Mal
Mr. Soham Sen
For the State : Mr. Jahar Lal De
(In WPA 22568 of 2016) Mr. Shamim-ul- Bari
For the Petitioner : Mr. S. Jahan
(In WPA 23774 of 2016) Ms. Jyotsna Ray Mukherjee
Mr. M.K. Das
Ms. Srijani Mukherjee
Ms. Prerna Dutta
For the Respondents Nos. 1-3/ : Mr. Manujendra Narayan Roy
WBSEC Mr. B. Nandy
Mr. Gourav Halder
For the Respondent No. 6 : Mr. Suman Basu
(In WPA 23774 of 2016)
For the State : Mr. Jahar Lal De
(In WPA 23774 of 2016) Ms. Tapati Samanta
Judgment on : 05.05.2026
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Ananya Bandyopadhyay, J.:-
1. The writ petition being no. 22568 of 2016 is filed praying for quashing of
charge-sheet being no. 263-SEC/1L-46/05 (Part-I) dated 28.03.2016 and
supplementary charge-sheet being no. 289-SEC/1L-46/05 (Pt-I) dated
30.03.2016 issued by the State Election Commissioner, West Bengal State
Election Commission under Rule 10 of the West Bengal Services
(Classification, Control and Appeal) Rules, 1971 and quashing of Enquiry
Report dated 1304.2016 in respect of disciplinary proceeding held against
Smt. Piyali Chowdhury (petitioner in WPA 22568 of 2016) and setting
aside the second show cause notice dated 15.04.2016 upon Piyali
Chowdhury on departmental proceeding in respect of the above charge-
sheets and quashing of order vide memo no. 408-SEC/1L-46/05 (Pt. I)
dated 28.04.2016 passed by the Disciplinary Authority i.e., State Election
Commissioner, West Bengal State Election Commission regarding
punishment of removal from service of Piyali Chowdhury.
2. The writ petition being no. 23774 of 2016 is filed praying for quashing the
order bearing no. 407-SEC/1L-45/05 (Pt. I) dated 28.04.2016 passed by
the State Election Commissioner, West Bengal State Election
Commission, inter alia, removing the petitioner/ Smt. Moujhuri De from
service against the post of Data Processor of State Election Commissioner,
West Bengal.
3. The narrative of the instant case begins on the 20th day of December,
2004, when the State Apparatus, vide Government Order No.634 Home
(Cons.), formally sanctioned a post for a Data Processor, complete with a
designated scale of pay. Recognizing the immediate operational exigencies
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of the administration, the Special Secretary to the Government of West
Bengal, on February 16, 2005, granted a 'No Objection' clearance to fill
this newly minted post strictly on a contractual basis for a transient
tenure of six months. This administrative intention was translated into a
public invitation on April 1, 2005, through an advertisement detailing the
explicit eligibility criteria required of aspiring candidates. The petitioner,
asserting compliance with these stipulations, stepped forward and was
subsequently summoned on April 28, 2005, to undergo a rigorous
selection process comprising both a formal interview and a hands-on
practical test. Standing evaluation alongside her peers, she participated in
the interview and presented her testimonials on May 5, 2005. Her merit
found favor with the selectors, culminating in the issuance of an
appointment letter on June 20, 2005, by virtue of which she entered into
her duties as a Data Processor within the West Bengal State Election
Commission on June 30, 2005.
4. What followed was a protracted chapter of administrative extensions and
systemic recognition that gradually altered the nature of her employment.
Upon the expiry of her initial contractual term, the state chose to
continuously prolong her service, first through an order dated November
11, 2005, which granted an extension of six months, and subsequently
via an order dated May 10, 2006, which stretched her tenure by a full
year until June 30, 2007. A significant shift occurred on September 6,
2006, when Respondent No. 1 transitioned her from a strictly contractual
role to a temporary appointment within the regular scale of pay. The
state's reliance on her services was further underscored by periodic
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executive interventions; on August 13, 2007, and later on April 26, 2013,
the Assistant Secretary to the Government of West Bengal issued formal
orders for the retention of her post. This administrative embrace deepened
when the Joint Secretary, on February 5, 2008, and the Secretary of the
Commission, on September 2, 2014, issued explicit memoranda calling
for the permanent retention and regularisation of her services. During
this period of upward mobility, her pay scale was appropriately revised,
and on February 5, 2010, the Commission formally confirmed her
temporary service, retrospectively effective from September 6, 2006,
explicitly invoking the statutory protection of Rule 5 of the West Bengal
Service (Appointment, Probation and Confirmation) Rules, 1969.
5. However, this decade-long trajectory of secure public service was abruptly
upended. On March 28, 2016, the petitioner was served with a formal
Charge-sheet and an accompanying Article of Charges, dragging her
career into the arena of disciplinary scrutiny. The matter was swiftly
processed through the disciplinary mechanism, and in exactly one month,
on April 28, 2016, the Disciplinary Authority delivered a fatal blow to her
livelihood by passing an order of removal from service. In doing so, the
authority looked back to the absolute inception of her career, declaring
her original appointment inherently illegal and void from the very start. To
justify this drastic, retroactive severance of a long-standing employment
relationship, the state took shelter under the stringent judicial principles
enunciated by the Supreme Court in the landmark precedent of Secretary,
State of Karnataka v. Uma Devi.
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6. The facts agitated by both the petitioners are candidly similar. Therefore,
this Court, for brevity, refrains from reiterating the same differentially but
confining to one petitioner.
7. The Learned Counsel appearing on behalf of the petitioner no.1 submits
that the controversy involved in the present proceeding cannot be reduced
to a narrow issue concerning the discontinuance of a contractual
employee. According to the petitioner, the matter touches upon larger
questions relating to fairness in public employment, legitimate
administrative conduct, and the treatment accorded by the State to an
employee who has rendered long and uninterrupted service over a
substantial period of time. It has been argued that the respondent
authorities, while passing the impugned order, have proceeded upon an
erroneous and overly technical understanding of the principles governing
public appointments and have failed to appreciate the distinction
consistently maintained in constitutional jurisprudence between
appointments which are fundamentally illegal and those which may, at
the highest, suffer from procedural irregularity.
8. Placing considerable reliance upon the principles laid down in State of
Karnataka v. Umadevi (3) and the subsequent clarifications rendered in
State of M.P. v. Lalit Kumar Verma as well as State of Karnataka v. M.L.
Kesari, learned Counsel submits that an appointment can be
characterized as illegal only where it is made in complete disregard of the
constitutional scheme governing public employment or where the process
of recruitment is wholly bypassed in a manner destructive of
transparency and equal opportunity. It has been contended that the
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Supreme Court itself has recognized a distinction between appointments
made through clandestine or back-door methods and appointments
arising out of a process which substantially satisfies the requirement of
openness and public participation, even if certain procedural
requirements may not have been complied with in absolute strictness.
9. Developing the aforesaid submission, learned Counsel contends that the
petitioner's induction into service was neither secretive nor arbitrary. The
appointment, according to the petitioner, originated from a public
advertisement issued on 1st April, 2005 inviting applications from eligible
candidates. Pursuant thereto, the petitioner, along with several other
aspirants, participated in a selection process consisting of practical
examinations and formal interviews. It has been emphasized that the
petitioner possessed all requisite educational and professional
qualifications prescribed for the post at the very threshold of her
appointment and there existed no deficiency in eligibility at any stage.
Learned Counsel therefore submits that the petitioner entered public
service through an identifiable and transparent recruitment process and
that the respondents are now seeking to retrospectively stigmatize such
appointment by describing it as "illegal", contrary to the factual
foundation on record.
10. The Learned Counsel further submits that the impugned action reflects a
selective and incomplete reading of the law declared in Umadevi (3). It has
been argued that the decision itself recognized the need to protect
employees who had continued for long years in service against sanctioned
posts without the intervention of judicial orders and whose appointments,
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though procedurally irregular, were not tainted by fraud or lack of
qualification. Referring additionally to the observations made in Vinod
Kumar v. Union of India, learned Counsel submits that constitutional
fairness in employment cannot remain confined to rigid contractual labels
where the actual nature of service demonstrates continuous institutional
dependence upon the employee concerned.
11. It has been specifically argued that the petitioner rendered uninterrupted
service for more than fifteen years under the respondent authorities. Such
continuation was not secured by any interim protection granted by a
Court or Tribunal. On the contrary, according to the petitioner, the State
itself repeatedly renewed and extended her engagement by issuing formal
orders from time to time, thereby consciously electing to continue availing
her services over an exceptionally long duration. Learned Counsel
submits that the uninterrupted extensions granted over more than a
decade clearly indicate that the petitioner's services were not regarded as
temporary or dispensable by the authorities themselves.
12. The petitioner further contends that throughout this extended period, she
discharged duties identical or substantially similar to those performed by
regular employees working under the establishment. It has been argued
that the petitioner worked against sanctioned and vacant posts and
performed responsibilities integral to the functioning of the institution.
Learned Counsel submits that the conduct of the respondents over the
years demonstrates that the petitioner's engagement gradually acquired a
permanent character in substance, notwithstanding the terminology
employed in the original contract of appointment.
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13. In support of such submission, reliance has been placed upon the fact
that the petitioner's remuneration was periodically revised and enhanced
by the authorities themselves. It has further been pointed out that her
service progression was considered by a Departmental Promotional
Committee, a circumstance which, according to the Learned Counsel,
reflects institutional recognition of her continuing role within the
establishment. The petitioner therefore contends that the State cannot,
after continuously treating the petitioner as part of its regular
administrative structure for over fifteen years, abruptly revert to the
original contractual description in order to justify her removal from
service.
14. The Learned Counsel had also seriously disputed the factual stand taken
by the respondents that no advertisement had ever been issued for the
post in question. According to the petitioner, such assertion was
fundamentally inconsistent with the actual recruitment process
undertaken at the relevant point of time. It had been argued that the
participation of multiple candidates in practical tests and interviews itself
demonstrates the existence of a public recruitment exercise. Learned
Counsel submits that the respondents are attempting to deny the
existence of the advertisement solely for the purpose of retrospectively
portraying the petitioner's appointment as illegal.
15. It has further been contended that the impugned termination has not
been preceded by any allegation of misconduct, negligence, inefficiency, or
dereliction of duty against the petitioner. Throughout the lengthy period of
service rendered by her, no adverse material has been placed on record
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reflecting any dissatisfaction regarding her conduct or performance.
Learned Counsel therefore submits that the sudden discontinuance of the
petitioner after availing her services continuously for more than fifteen
years is arbitrary in nature and contrary to the standards of fairness
expected of a State authority functioning within the constitutional
framework.
16. According to the petitioner, the impugned action also offends the
principles of natural justice inasmuch as the petitioner has been deprived
of her livelihood and service benefits without any meaningful
consideration of the circumstances under which she entered service and
continued therein for over a decade and a half. The action of the
respondents, it is argued, proceeds upon a narrow technical
interpretation while completely disregarding the factual realities
acknowledged by the authorities themselves throughout the petitioner's
tenure.
17. On the aforesaid grounds, the Learned Counsel appearing for the
petitioner submits that the impugned order of termination is
unsustainable in law and liable to be set aside. The petitioner accordingly
seeks reinstatement in service together with recognition of her status in
accordance with law and all consequential service and financial benefits
flowing therefrom. A perusal of the comprehensive submissions advanced
on behalf of the petitioner reveals a poignant narrative of long,
unblemished service, juxtaposed against a mechanical and
unsympathetic exercise of administrative power.
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18. The core of the dispute, as presented by the learned Advocate for the
petitioner, lies in a critical misdirection by the respondent authorities,
who have failed to distinguish between an appointment that is
fundamentally "illegal" and one that is merely "irregular." Guided by the
luminous principles enunciated by the Hon'ble Apex Court in State of
Karnataka v. Umadevi and explicitly reinforced in State of M.P. v. Lalit
Kumar Verma, the petitioner's initial entry into service cannot be termed a
back-door entry. The appointment was preceded by a public
advertisement dated April 1, 2005, and the petitioner emerged successful
through an open, competitive matrix comprising a practical hands-on test
and an interview. To brand such an appointment as "illegal" is to
completely ignore the fact that she possessed all the prescribed minimum
qualifications and conformed to the essential facets of the constitutional
scheme.
19. Furthermore, the submissions eloquently invoke the equitable doctrine of
regularisation as a one-time measure, a concept carefully preserved in
Paragraph 53 of the Umadevi judgment and subsequently refined in State
of Karnataka v. M.L. Kesari. The petitioner's service profile satisfies every
criterion required to claim this benefit:-
a. She has rendered more than fifteen years of continuous,
voluntary service.
b. This long service was performed without the protective shield of
any interim judicial order.
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c. Her position was periodically validated by the respondents
through regular extensions and the upward revision of her pay
scale.
20. To abruptly terminate such an employee after her youth and finest years
have been dedicated to the institution is a glaring act of arbitrariness that
shocks the judicial conscience.
21. In its final and perhaps most compelling tier, the argument shifts from
static technicalities to the dynamic reality of human affairs, placing
reliance on the recent, progressive wisdom of Vinod Kumar v. Union of
India (2024). The essence of an employment relationship, it is urged,
cannot remain forever fettered by the nomenclature used at its inception.
When the course of employment evolves over decades, when the duties
performed are indistinguishable from those of permanent staff, and when
the process is overseen by mechanisms akin to a Departmental
Promotional Committee, the relationship undergoes a qualitative
transformation.
22. The abrupt removal of the petitioner, while ignoring these profound legal
and factual realities, stands exposed as a decision steeped in an
erroneous interpretation of the law. The petitioner's case squarely fits
within the protective umbrella of settled precedents, rendering the
impugned action of the respondents wholly unsustainable in the eyes of
law.
23. The arguments advanced by the learned counsel on behalf of the
petitioner no.2 contest the legality of the impugned termination by
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addressing the statutory assumptions relied upon by the respondents. It
is submitted that the Commission's invocation of Section 7 of the West
Bengal Election Commission Act to disclaim its responsibility as an
appointing authority is misconceived. While Section 7 delineates the
recruitment of personnel strictly required for electoral rolls and the
conduct of local body elections, Section 11 presupposes the existence of
an administrative infrastructure for maintaining accounts. The statute's
silence on the precise engagement process for such financial staff cannot
translate into a total lack of power. The petitioner, recruited as a Data
Processor, falls outside the restrictive strictures of Section 7. The
Commission, therefore, acted within its administrative competence,
having initiated the recruitment drive after obtaining prior sanction and
permission from the state.
24. The narrative of the petitioner's employment highlights a trajectory
marked by institutional transparency and state validation. At every
consequential milestone--spanning the initial advertisement, consecutive
terms of engagement, subsequent regularization, pay-fixation, and final
confirmation of service--the Commission apprised the State Government.
By regularly releasing budgetary allocations to fund the petitioner's salary
across a tenure of eleven years without raising a single note of protest, the
State Government consented to, accepted, and ratified her employment
status. This long-standing pattern of passive acquiescence and active
approbation debars the state from challenging the validity of her
appointment at this juncture.
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25. Consequently, it is urged that the Commission is both structurally and
equitably precluded from reversing its position to the peril of the
employee. Having utilized the petitioner's professional services,
regularized her status, and formally confirmed her services, the
respondents are prohibited by the Principle of Estoppel from asserting a
plea of institutional incapacity. The entire disciplinary mechanism
deployed against her lacks a lawful foundation, as it penalizes the
individual for an administrative irregularity or fault attributable solely to
the institutional machinery of the employer. This punitive action is
further affected by procedural infirmity, given that the second Show
Cause notice was issued without adhering to due process and the
fundamental principles of natural justice.
26. The Learned Counsel underscores the socio-economic prejudice inflicted
by this sudden termination, noting that it stands in opposition to the
national policy of job security. Having entered the service within the
prescribed age threshold for public recruitment, the petitioner has now
crossed the upper age limit during her long tenure with the Commission,
leaving her unemployable in the government sector and facing joblessness
without any fault on her part.
27. This drastic action directly contradicts the protective policy framework of
successive circulars issued by the Government of West Bengal. The
foundational circulars dated 23.04.2010, 22.12.2010, and 16.09.2011
were explicitly promulgated to mitigate the inherent vulnerabilities of
casual and contractual workers with over ten years of continuous service,
extending a comprehensive social security umbrella that guarantees
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tenure up to sixty years, predictable entry-point emoluments, and vital
welfare safeguards. The subsequent policy interventions dated 01.03.2024
and 07.03.2024 were designed to upgrade these protections by
restructuring consolidated monthly remunerations to counter inflationary
shifts and significantly enhancing the one-time terminal retirement
benefit to five lakh rupees, thereby insulating non-permanent employees
from destitution. Guided by the legal principles enunciated by the Hon'ble
Supreme Court in Jaggo Vs Union of India, reported in 2025 AIR(SC) 296,
the petitioner seeks judicial intervention to quash the order of termination
and a direction enabling her to resume her duties with full entitlement to
back wages.
28. The State Government was informed at every decisive stage of the
petitioner's engagement, including the issuance of the initial
advertisement, successive extensions of contractual service, regularisation
of employment, fixation and revision of remuneration, and eventual
confirmation in service. During the entire tenure of the petitioner, the
State continued to release budgetary allocations towards payment of
salary without raising any objection regarding the legality or competence
of the appointment. Such uninterrupted financial sanction and
administrative acceptance, it is contended, amount to unequivocal
ratification of the petitioner's service status. The State, having consciously
permitted the petitioner to continue for more than a decade under official
sanction, cannot now be permitted to repudiate the very appointment
which it consistently recognised and financially sustained.
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29. The Learned Counsel further submits that the respondents are barred,
both in law and in equity, from reversing their long-standing position to
the detriment of the petitioner. The Commission, after extracting
uninterrupted service from the petitioner, regularising her employment
and formally confirming her service, cannot subsequently plead
institutional incapacity to justify termination. It is contended that the
disciplinary action initiated against the petitioner proceeds upon a wholly
untenable foundation, inasmuch as the employee is sought to be
penalised for an alleged procedural irregularity attributable solely to the
administrative machinery of the employer itself. The respondents,
according to the petitioner, cannot transfer the burden of their own
institutional lapses upon an employee who entered service through a
process sanctioned and perpetuated by the authorities themselves.
30. It is additionally argued that the entire disciplinary proceeding suffers
from serious procedural impropriety. The issuance of the second show-
cause notice, according to learned counsel, was undertaken in breach of
the settled principles of natural justice and without adherence to the
safeguards of fair procedure, thereby rendering the ultimate decision
arbitrary and legally unsustainable.
31. The learned counsel also places considerable emphasis upon the severe
socio-economic consequences resulting from the impugned action. It is
submitted that the petitioner had entered service while fully eligible for
public employment within the prescribed age limit and has now, by
reason of long and uninterrupted service under the Commission, crossed
the upper age threshold for fresh recruitment in government service. The
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abrupt termination has thus rendered the petitioner virtually disentitled
from competing for public employment elsewhere, notwithstanding the
absence of any allegation touching upon integrity, competence, or
misconduct.
32. In this context, reliance has also been placed upon successive circulars
and policy decisions issued by the Government of West Bengal concerning
contractual and casual employees, wherein emphasis was laid upon
continuity of engagement, protection against arbitrary disengagement,
and the grant of minimum financial security to such categories of
workers. Learned counsel submits that the impugned action runs
contrary to the spirit underlying those governmental directives which
sought to prevent sudden deprivation of livelihood of long-serving
employees engaged under State instrumentalities.
33. Invoking the principles enunciated by the Hon'ble Supreme Court in
Jaggo Vs. Union of India, the learned counsel urges that the order of
termination be quashed and set aside, and appropriate directions be
issued permitting the petitioner to resume service with continuity of
employment, consequential benefits, and full back wages.
34. The arguments advanced by the Learned Advocate on behalf of the West
Bengal State Election Commission unfold as an uncompromising defence
of statutory discipline, articulating a profound boundary between
administrative overreach and the rule of law. Presented in response to the
challenges raised in WPA No. 22568 of 2016 (Smt. Piyali Chowdhury v.
The West Bengal State Election Commission) and WPA No. 23774 of 2016
(Smt. Moujhuri De v. The State of West Bengal & Others), the
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submissions address a foundational question of institutional competence:
whether a statutory commission possesses the inherent power to
regularize or appoint its own staff.
35. At the very core of the Commission's defense lies a strict, text-based
interpretation of its enabling statute. It is contended with absolute clarity
that the West Bengal State Election Commission Act, 1994, is entirely
devoid of any provision investing the Commission with an independent
power of appointment or regularization. Instead, the legislative blueprint
deliberately places this authority within the hands of the executive. By
virtue of Section 7(1) of the 1994 Act, the Commission is merely a
recipient of staff, which the Governor is mandated to make available upon
request to ensure the smooth discharge of its functions under Sections
4(1) and 5(1). This statutory design is further fortified by Section 7(2),
which explicitly directs that the terms and conditions of service governing
such staff must mirror those applicable to employees of the State
Government. Consequently, any unilateral attempt by the Commission to
extend contractual engagements or regularize services stands entirely
detached from legal authority, rendering such appointments inherently
void ab initio and non-existent in the eyes of law.
36. This statutory distribution of power finds its ultimate constitutional
resonance in Article 243K(3) of the Constitution of India. The text leaves
no room for ambiguity, casting an obligation upon the Governor of the
State to provide the Commission with the necessary staff to fulfill its
constitutional mandate. When read in tandem, Article 243K(3) and
Section 7 of the 1994 Act form an unbreakable legal barrier that bars the
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Commission from assuming the role of an appointing authority. The
petitioners' appointments, having been born out of an institutional act
completely lacking jurisdiction, suffer from a fundamental legal infirmity.
The moment this perpetual illegality came to light, the Commission was
duty-bound to rectify it. It did so not through arbitrary action, but by
initiating formal proceedings, thereby granting the petitioner an ample
and fair opportunity to defend herself in complete alignment with the
principles of natural justice before passing the final order of removal.
37. To insulate this argument from pleas of equity or administrative
consistency, the Learned Advocate representing the Commission relies
upon an unbroken line of jurisprudence from the Apex Court, illustrating
that a foundational illegality cannot be cured by the passage of time or
appeals to sympathy.
38. The Commission invokes the classic principle of literal interpretation
through Raghunath Rai Bareja v. Punjab National Bank (2007) 2 SCC 230,
asserting that where the language of a statute is plain and unambiguous,
courts must give effect to it, for equity cannot subvert the express
mandate of law.
39. This is seamlessly reinforced by Kulwinder Pal Singh v. State of Punjab
(2016) 6 SCC 532, which establishes that an illegality cannot be claimed
as a matter of right, and the State cannot be compelled to perpetuate an
erroneous practice merely because it occurred in the past.
40. The argument against the defence of past practice is further solidified by
State of Rajasthan v. Surendra Mohnat (2014) 14 SCC 77, which reiterates
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that the doctrine of estoppel cannot operate against the law, and
mistaken benefits can never ripen into an enforceable right.
41. Addressing the boundaries of judicial intervention, the Commission turns
to M.C. Mehta v. Union of India (1999) 6 SCC 237, arguing that a Court
exercising jurisdiction under Article 226 may righteously refuse to strike
down an administrative order--even if a procedural defect is alleged--if
doing so would result in the revival of a previous order that was itself
thoroughly unlawful. Furthermore, the structural separation of powers is
brought to the fore through Rishab Agro Industries Ltd. v. P.N.B. Capital
Services Ltd. (2000) 5 SCC 515, reminding the Court that while the
judiciary holds the power to interpret laws, it must refrain from
legislating; if a statute exposes gaps or leads to perceived hardships, the
remedy lies exclusively with the Legislature to amend or modify.
42. The defence culminates in a definitive reliance on the Division Bench
judgment of the High Court at Calcutta in The Calcutta Dock Labour
Board v. Md. Fazlur Rahaman (1997) 2 CHN 281. This authority strikes at
the very root of the petitioners' claim by holding that when an
administrative action is fundamentally ultra vires the statute that creates
the instrumentality, no legitimate expectation can ever arise from it.
43. Ultimately, the Commission's position rests upon a principled plea: where
there is an absolute absence of statutory power, an appointment is a
nullity from its inception. No length of service, no plea of equity, and no
invocation of past practice can breathe life into a legal non-entity, and the
Court must uphold the purity of the statutory framework over individual
expectations. The submissions advanced on behalf of the West Bengal
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State Election Commission emerge as a carefully structured assertion of
statutory limitation and constitutional discipline, resisting any attempt to
enlarge the Commission's authority beyond the contours consciously
drawn by the legislature. In answering the challenges raised in WPA No.
22568 of 2016 (Smt. Piyali Chowdhury v. The West Bengal State Election
Commission) and WPA No. 23774 of 2016 (Smt. Moujhuri De v. The State
of West Bengal & Others), the Commission places before the Court a
singular and determinative issue: whether a constitutional body, created
by statute for a defined purpose, may assume unto itself a power of
appointment and regularisation which the statute itself has consciously
withheld.
44. The foundation of the Commission's argument rests upon the language of
the West Bengal State Election Commission Act, 1994, which, according
to the respondents, admits of no ambiguity whatsoever. It is contended
that the statutory framework does not confer upon the Commission any
independent authority either to create posts, appoint personnel, or
regularise services. The architecture of the enactment reveals a deliberate
legislative arrangement whereby the Commission functions with staff
made available to it by the State Government through the office of the
Governor. Section 7(1) of the 1994 Act is relied upon to demonstrate that
the Commission is merely entitled to requisition staff necessary for the
discharge of its constitutional and statutory obligations under Sections
4(1) and 5(1), while the obligation to provide such personnel rests
exclusively upon the Governor. The provision, according to the
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respondents, does not recognise the Commission as an appointing
authority in its own right.
45. The respondents further place considerable emphasis upon Section 7(2) of
the Act, which mandates that the conditions of service of the personnel so
deployed shall be regulated in the same manner as those applicable to
employees under the State Government. Such statutory assimilation, it is
argued, unmistakably indicates that the staff attached to the Commission
continue to derive their legal character and service identity from the State
and not from the Commission itself. The Commission therefore submits
that any contractual engagement or extension granted de hors the
statutory framework was wholly unsupported by law and consequently
incapable of creating any enforceable legal right in favour of the
petitioners.
46. The argument is elevated beyond the statute and anchored firmly within
the constitutional scheme through reliance upon Article 243K(3) of the
Constitution of India. The Commission contends that the constitutional
provision itself recognises the Governor as the repository of the obligation
to provide staff necessary for the functioning of the State Election
Commission. Read conjointly with Section 7 of the 1994 Act, the
constitutional arrangement leaves no manner of doubt that the
Commission was never intended to function as a recruiting or regularising
authority. The appointments in question, according to the respondents,
thus suffer from a complete absence of jurisdiction at their inception and
are consequently void ab initio. Such illegality, being foundational in
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character, cannot be validated either through continuity of service or by
administrative acquiescence.
47. Proceeding on this premise, the Commission submits that once the
irregularity came to its notice, it became incumbent upon the authority to
correct the illegality rather than perpetuate it. The impugned action, it is
urged, was not undertaken precipitately or in violation of procedural
safeguards. On the contrary, the Commission initiated formal
proceedings, afforded the petitioners an adequate opportunity of
representation, considered their response, and only thereafter proceeded
to pass the order of removal. The respondents therefore assert complete
adherence to the principles of natural justice.
48. According to the respondents, once the source of power itself is absent,
every consequential act collapses under the weight of jurisdictional
infirmity. Compassion, continuity of service, or institutional practice
cannot infuse legal vitality into an appointment that the statute never
authorised. The respondents thus urge that fidelity to the constitutional
and statutory framework must prevail over considerations resting solely
upon individual expectation or equitable sympathy.
49. The Learned Advocate for the respondent no.5 submitted the intricate
legal tapestry of the present dispute unfolds from a series of departmental
disciplinary proceedings initiated by the West Bengal State Election
Commission against the petitioners, culminating in the severe
administrative consequence of their removal from contractual service. The
historical genesis of their engagement reveals that during the pressing
exigencies of municipal elections and elections to the Kolkata Municipal
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Corporation, the State Government stepped in. Through a communication
dated 16th February, 2005, the Special Secretary to the Government of
West Bengal articulated a conditional "No Objection" to populate the posts
of Data Processors under the Commission. This sovereign sanction,
however, was strictly circumscribed by twin limitations: it was explicitly
restricted to a transient duration of six months and was anchored entirely
on a contractual basis, subject to the observation of all requisite
formalities, while simultaneously inviting suggestions for the formulation
of regular recruitment rules.
50. This temporary bridge of employment was never permanently regularized,
as the six-month contractual window lapsed without any valid extension
from the State Government. The chronological matrix indicates that the
authorized tenure reached its natural expiration on 29th December, 2005,
and any subsequent extension granted by the Commission on 11 th
November, 2005, was engineered completely sans the mandatory approval
or sanction of the State. Consequently, according to the respondents, the
petitioners' retention beyond the sanctioned period remained unsupported
by any valid statutory or administrative authority.
51. When administrative infractions eventually compelled the Commission to
issue a formal Charge Sheet on 28th March, 2016, followed by a
supplementary charge sheet on 30th March, 2016, the charging
documents themselves explicitly acknowledged these foundational
realities, noting the lack of state imprimatur for the petitioners' continued
retention. Following the due trajectory of an internal inquiry, the
24
Commission ultimately passed the impugned order dated 28th April, 2016,
directing the petitioners' removal from service.
52. Seeking refuge from this order of termination, the petitioner approached
the West Bengal State Administrative Tribunal by preferring an original
application. The learned Tribunal, upon a meticulous contemplation of
the materials on record, dismissed the plea through its order dated 30 th
June, 2016, returning a categorical finding that the applicant did not hold
a "Civil Post" within the true legal contemplation of the term.
Consequently, invoking the restrictive provisions of Section 15 of the
Administrative Tribunals Act, the Tribunal correctly held that it lacked
the necessary jurisdiction to entertain or adjudicate upon the grievance.
Crucially, the petitioner chose to accept this verdict to the extent that she
did not challenge it before any superior forum, thereby allowing the
judicial determination regarding her non-civil status to achieve absolute
finality and bind the parties involved.
53. In the crucible of the present writ application, the attempt to draw the
State Government into the vortex of liability faces insurmountable
structural legal hurdles. An absence of privity of contract persists between
the State Government and the petitioner, as the Commission operates as
an independent statutory entity, rather than a direct government
establishment or an operational department of the State proper. Because
of this distinct institutional separation, the beneficial state policies
enshrined in various government memoranda issued in 2011 and 2012
cannot be extended to cover the petitioner's case. Furthermore, the four
corners of the writ petition reveal a complete absence of specific
25
allegations or prayers for relief directed against the State Government,
which was only subsequently impleaded as a party respondent by a court
order in July 2019. It remains the admitted position of the Commission
that the petitioner was never engaged in compliance with the statutory
provisions of Section 7 of the West Bengal State Election Commission Act,
1994, making the initial appointment an unauthorized exercise outside
the lawful matrix of the Act.
54. Ultimately, having acquiesced to the Tribunal's binding finding that she
holds no civil post, and facing an irremediable absence of any statutory or
contractual privity with the sovereign authority, the petitioner cannot
claim any relief whatsoever against the State Government and the
answering respondent must be completely absolved of all liabilities.
55. The adversarial contours of these conjoined writ petitions expose a
profound, multi-layered conflict between the asymmetric weight of
sovereign executive power and the equitable safeguards designed to
guarantee security of tenure within the realm of public employment. The
controversy, which draws the professional survival of Smt. Piyali
Chowdhury and Smt. Moujhuri De into sharp judicial focus, presents an
intricate historical narrative spanning more than a decade of bureaucratic
transitions, incremental statutory integration, and a sudden, cataclysmic
disciplinary intervention that seeks to retroactively unravel years of
settled administrative conduct.
56. The judicial conscience of this Court is deeply stirred by the narrative of
administrative overreach and structural asymmetry that permeates these
conjoined writ petitions. In evaluating the adversarial contentions raised
26
by the learned advocates for the petitioners and the robust resistance
offered by the state respondents, the core issue does not merely concern
the procedural mechanics of an ordinary departmental inquiry. Rather, it
demands an examination of whether an institutional authority, having
validly inducted, periodically retained, systematically remunerated, and
formally confirmed an individual within the permanent civil service
structure, can later retroactively destabilize that employment. Can it use
a summary disciplinary mechanism to bypass the substantive protections
guaranteed under Articles 14, 16, and 21 of the Constitution of India?
57. It is imperative to delineate the following documents on record to trace the
origin and eventualities of the service inception and continuation therein
in respect of both the petitioners.
58. The Government Order No. 634- Home(Cons.) dated Kolkata, the 20 th
December, 2004 is replicated as follows:-
"The undersigned is directed, by order of the Governor, to say that the
Governor has been pleased to sanction creation of the temporary posts
as shown in details in the margin for a period of one year with effect
from the date of issue of this order for the Office of the West Bengal
State Election Commission set up under Home (Political) Department
notification No.4033-P dated 31.05.1994.
Sl. No. Name of Post Number of Scale of Pay
post(s)
sanctioned
27
1. Schedule-A 1(One) Grade pay of
Stenographer Schedule-A Stenographer
(to be provided by the
Finance Department).
2. Cashier-cum-U.D. 1(One) Rupees 4000-125-4250-
150-5300-175-7050-200-
8850/-
3. Data Processor 3(Three) Rupees 3350-90-3800-100-
4700-125-6325/-
4. Driver 1(One) Rupees 3350-90-3800-100-
4700-125-6325/-
This order is issued with the concurrence of the Finance Department vide their U/o.
No.Group-P(Service) No.2954 (P) dated 26.10.2004.
......."
59. The communication No.86-(Cons.) dated Calcutta, the 16th February,
2005 of the Special Secretary, Home (C&E) Department, Writers'
Buildings, Calcutta, stated as follows:-
"Sir,
I am directed to refer to the D.O. No.47-SSC/5E-1/94 dated
18.01.2005 of the State Election Commission regarding filling up of
some posts which inter alia include the posts of Date Processors and
state that this Department gave no objections to fill up the posts of Data
Processors the State Election Commission for a period of six months
strictly on contract basis after observing all the requisite formalities in
view of urgent need of the Commission in connection with forthcoming
28
elections to Municipalities and Kolkata Municipal Corporation and also
subject to finalization of the recruitment rules for the said post.
I would, therefore, request you to kindly let us have your
suggestions regarding framing of the recruitment rules for the said post
at an early date to enable us to process the matter and to issue
necessary orders allowing the Commission to appoint Data Processing
personnel.
Yours faithfully,
Sd/-
Special Secretary"
60. The Notice No.436(2)-SEC/4A-25/04 dated 01.04.2005 of the West
Bengal State Election Commission is stated as follows:-
"NOTICE
Applications are invited to fill-up two posts of "Data Processor" on a
contract basis for the period of 6 (six) months on a contractual pay of
Rs.5000/- (Rupees five thousand) only per month in the West Bengal State
Election Commission, 18, Sarojini Naidu Sarani, Kolkata-70017.
Applicants must pass H.S. Examination and hold a diploma of at least
two years course on Computer Application from a recognised institution.
Experience of at least one year after completion of the course is required.
Application must be submitted on or before the 11th day of April, 2005
with the following information addressed to the Secretary, West Bengal
State Election Commission in a foolscap paper.
1. Name
2. Father's/Husband's Name
3. Nationality
4. Permanent Address
5. Present Address
6. Date of Birth
7. Educational Qualification
8. Employment Exchange Registration
9. Extra curricular activities
29
Secretary,
West Bengal State Election Commission"
61. The communication No.795(6)-SEC/4A-25/04 dated 28.04.2005 of the
Joint Secretary, WBSEC addressing to Smt. Moujhuri Dey (Das) stated as
follows:-
"Your are hereby requested to appear before the Secretary in his
chamber on 05.05.2005 at 2:00 P.M. alongwith original certificates and
testimonials for an interview and Hands-on-test for consideration of
your prayer for contractual appointment to the post of "Data Processor".
Please note that no T.A./D.A. will be admissible in this regard."
62. The Order No.995-SEC/4A-25/2004 dated 11.05.2005 of the West Bengal
State Election Commission is stated as follows:-
"ORDER
The undersigned is hereby directed by order of the Commissioner, West
Bengal State Election Commission to appoint Smt. Moujhuri Dey, East
Station Road, Agarpara, Kolkata-700109, for a period of 6 (six) months from
the date of joining on a contractual and consolidation pay of Rs.5000/-
(Rupees five thousand only) per month in the Office of the West Bengal
State Election Commission, 18, Sarojini Naidu Sarani, Kolkata-700017 to
the post of "Date Processor".
She is advised to join immediately but nor later than 23.05.2005. In the
event of failure to join by that date this offer of contractual appointment will
be treated as cancelled.
During the period of contract from the date of her joining, her service is
terminable at any time without assigning any reason at the discretion of the
Commission."
63. The Order No.3361-SEC/4A-25/04 dated 11.11.2005 of the West Bengal
State Election Commission stated as follows:-
"ORDER
30
In continuation of this Commission's Order No.995-SEC/4A-25/04
dated 11.05.2005 the undersigned is directed to say that following
termination of contractual tenure of service of Smt. Moujhuri De as Data
Processor of this Commission, on 15th November, 2005. Smt. De is hereby
re-appointed for a further period of 6 (six) months i.e. upto 15th May, 2006
on contract basis at a consolidated pay of Rs.5000/- (Rupees five
thousand) only per month as per existing terms and conditions.
This order is issued in the interest of this Commission."
64. The Order No.380-SEC/4A-25/04 dated 10.05.2006 of the Joint
Secretary, West Bengal State Election Commission is stated as follows:-
"ORDER
In continuation of this Commission's Order No.3361-SEC/4A-25/04
dated 11.11.2005 the undersigned is directed to say that following
termination of contractual tenure of service of Smt. Moujhuri De, as Data
Processor of this Commission, on 15th May, 2006. Smt. De is hereby re-
appointed for a further period of 1 (one) year i.e. upto 15 th May, 2007 on
contract basis at a consolidated pay of Rs.5000/- (Rupees five thousand)
only per month as per existing terms and conditions.
This order is issued in the interest of this Commission."
65. The Communication No.409-SEC/4A-25/2004 dated 18.05.2006 of the
Secretary, West Bengal State Election Commission addressing to the
Surgeon Superintendent, Sambhunath Pandit Hospital, replicated below:-
"Sir,
I am directed to request you to examine the marginally noted
candidates whether they are medically fit for their appointment to
the posts of "Date Processor" to his Commission or not as per Govt.
Rules and to send the said reports confidentially to the undersigned
immediately.
1) Smt. Moujhuri De
2) Smt. Piyali Choudhury
31
....."
66. The Communication No.410-SEC/4A-25/04 dated 18.05.2006 of the West
Bengal State Election Commission addressing to Moujhuri De stated as
follows:-
"She is hereby requested to fill up the Verification Roll Form and
Declaration Form in duplicate sent alongwith this letter and to submit the
duly filled in forms to this Commission immediately.
These are required for consideration her candidature to the post of "Data
Processor" to this Commission.
......"
67. The Order No.1045-SEC/4A-25/2004 dated 06.09.2006 of the West
Bengal State Election Commission stated as follows:-
"ORDER
The undersigned is directed to say that the State Election
Commissioner, West Bengal, is pleased to appoint Smt. Moujhuri De
(Das), purely on temporary basis to the post of "Data Processor" in the
office of this Commission in the scale of pay of Rs.3350-90-3800-100-
4700-125-6325/-. In additional to basic pay she will be entitled to other
allowances as admissible."
68. The Communication No.Fund-III/Allot/D/168 from the Office of the
Accountant General (A&E), West Bengal addressing to the Joint Secretary,
West Bengal State Election Commission regarding allotment of G.P. Fund
A/c. No.ADMN/WB/79763, 79764, 79765 stated as follows:-
"Sir,
I am to enclose herewith the list/copies of the application of the
subscribers who have been allotted new G.P Fund A/C. Nos. whose
Nominations have been accepted in Audit and placed on record.
Accounts Nos. allotted against each should henceforth be quoted
correctly in the schedule of deduction. While quoting the A/c. No.s care
should be taken so that the prefix "ADMN/WB" is not omitted.
32
Any inadvertent duplication of A/c. Nos. should forthwith be
brought to notice of this office for cancellation of the same.
The subscriber may be asked to execute nomination early in
printed/cyclostyled form.
The receipt of the letter may please be acknowledged."
69. The Communication No.1392-SEC/10P-2/96 dated 28.11.2007 of the
West Bengal State Election Commission addressing to the Accountant
General (A&E), West Bengal stated as follows:-
"Ref: Your No.Fund-III/Nom/Rtd./D/182 dated 06.07.2007
Sir,
I am directed to refer to your letter under reference, and to send herewith
three filled in Nomination Forms in duplicate after necessary modifications
in column 5 & 6 of the marginally noted employees of this Commission as
desired from your end for admission to the General Provident Fund Scheme
under rule-2 of the GPF (West Bengal Services) Rule.
1. Smt. Piyali Chowdhury
GPF A/C No.ADMN/WB/79763
2. Smt. Moujhuri De
GPF A/C No.ADMN/WB/79765
3. Sri Krishanta Kanta Sarkar
GPF A/C No.ADMN/WB/79764
The receipt of the three filled in Nomination Forms, each in duplicate may
kindly be acknowledged.
......"
70. The Order No.335-SEC/2P-4/2009 dated 24.04.2009 of the West Bengal
State Election Commission replicated as follows:-
"ORDER
Smt. Moujhuri De & Smt. Piyali Chowdhury, appointed provisionally on
06.09.2006 in the scale of pay Rs.3,350/- ... Rs.6,325/- (unrevised) in the
post of Data Processor by this Commission. Now in terms of Rule 8 of West
33
Bengal Services (ROPA) Rules, 2009 their pay has been fixed at Rs.8,840
(Rs.6,240/- + Grade Pay Rs.2,600/-) in the revised Pay Bank of Rs.5,400/-
..... Rs.25,200/-.
Date of Increment as per Rule 10 of West Bengal Services (ROPA) Rules,
2009 are as follows:
DATE PAY IN THE GRADE PAY ANNUAL BASIC PAY
BAND INCREMENT
01.07.2007 Rs.6,510/- Rs.2,600/- Rs.270/- Rs.9,110/-
01.07.2008 Rs.6,790/- Rs.2,600/- Rs.280/- Rs.9,300/-
Next Annual Increment due on 01.07.2009
In terms of Rule 12 of West Bengal Services (ROPA) Rules, 2009, no arrear
pay and allowances thereon, will be admissible in respect of the period
from the 1st January, 2006 to the 31st day of March, 2008."
71. The Order No.155-SEC/4A-4/1994(Pt.-II) dated 05.02.2010 of the West
Bengal State Election Commission stated as follows:-
"ORDER
Smt. Moujhuri De, who was appointed as Data Processor vide this Office
Order No.1045-SEC/4A-25/2004 dated 06.09.2006 is hereby confirmed in
the said post w.e.f. 06.09.2009 in terms of Rule 5 of West Bengal Services
(Appointment, Probation and Confirmation) Rules, 1979.
....."
72. The genesis of this litigious dispute is firmly anchored in the twilight of
2004. By an official executive communication issued from Kolkata, dated
the 20th of December, 2004, the Deputy Secretary to the Government of
West Bengal formally notified the Pay & Accounts Officer, Kolkata-I, of the
issuance of Government Order No. 634-Home(Cons.). This foundational
order, promulgated with the indispensable prior concurrence of the
Finance Department vide its distinct Order No. Group-P(Service) No.
34
2954(P) dated the 26th of October, 2004, conveyed the pleasure of the
Governor to sanction the temporary creation of a specific cadre of
ancillary posts within the establishment of the West Bengal State Election
Commission. This newly sanctioned administrative infrastructure was
explicitly bounded by an initial lifespan of one year from the date of the
order's issuance and comprised a strict tabular hierarchy: a single post of
Schedule-A Stenographer, whose grade pay was left to be determined by
the Finance Department; one post of Cashier-cum-U.D. designated within
the classic scale of Rupees 4000-125-4250-150-5300-175-7050-200-
8850/-; a solitary post of Driver; and, pivotally, three distinct posts of
Data Processor. The three sanctioned posts of Data Processor were legally
tethered to the scale of Rupees 3350-90-3800-100-4700-125-6325/-, an
economic designation corresponding directly to Serial No. 6 within Part-D
under Schedule I of the West Bengal Services (Revision of Pay and
Allowance) Rules, 1998. Following this initial sanction, a secondary
administrative dialogue ensued, wherein the Home (C&E) Department, via
Memo No. 86-Home (Cons.) dated the 16th of February, 2005, conveyed
its formal "no objection" to the filling up of these Data Processor vacancies
on a strict contractual basis for an initial duration of six months. This
measure was specifically tailored to meet the immediate administrative
exigencies of the upcoming Municipal Elections, including the elections to
the Kolkata Municipal Corporation. This gubernatorial nod was, however,
expressly conditioned upon the observation of all requisite formalities and
remained subject to the ultimate finalization of formal recruitment rules
for the said posts.
35
73. Prompted by this administrative clearance, the machinery of the
Commission was set in motion. An advertisement for employment, bearing
the signature of the then-Secretary of the West Bengal State Election
Commission, was officially published on the office notice board on the 1st
of April, 2005. Under this notification, vide No. 436(2)-SEC/4A-25/04,
applications were formally invited from eligible citizens to fill up two
contractual posts of Data Processor for a period of six months. The
recruitment criteria set forth in the advertisement required candidates to
have successfully cleared the Higher Secondary Examination, to possess a
diploma of at least a two-year course in computer applications from a
recognized institution, and to demonstrate a minimum of one year of
practical experience acquired after the completion of the said course. The
economic consideration for this initial tenure was fixed at a consolidated
contractual pay of Rs.5000/- per month. Attracted by this public
invitation, Smt. Piyali Chowdhury submitted her candidature, asserting a
meticulous alignment with the stipulated benchmarks. The petitioner had
already achieved her Bachelor of Science degree and had successfully
traversed a rigorous two-year diploma course in computer applications
from Aptech Computer Education--a widely acknowledged and premier
training institute--as authenticated by her formal performance
statements covering consecutive examinations held on the 4th of March,
2001, and the 15th of February, 2002. Furthermore, her educational
pedigree included a foundational one-year course in Computer
Application pursued at "Nextgen", another recognized academy, spanning
from July 1998 to June 1999, supplemented by more than a year of active
36
professional experience following the completion of her technical
education.
74. By an official communication bearing No.795(6)-SEC/4A-25/04 dated the
28th of April, 2005, the petitioner was summoned to participate in an
interview and a hands-on practical test scheduled for the 5th of May,
2005. On that designated afternoon, she presented herself before the
Secretary of the Commission, producing her repository of original
certificates and testimonials for scrutiny. The evaluation was conducted
by a duly constituted Selection Committee, within which the individual
arrayed as respondent no. 3 sat as an active member. Upon a thorough
examination of the candidates' relative merits and practical capabilities,
the Committee formed a definitive merit panel of qualified individuals,
structured in the following order of preference: Smt. Moujhuri De (Das)
occupying the premier position at serial number (i) Shri Sudipta
Chakraborty placed at serial number ii; and Smt. Piyali Chowdhury at
serial number iii. When the candidate at serial number (ii) requested an
extension of one month to join the service, the Commission declined to
accommodate the request. Consequently, an appointment letter, under
order No. 2007-SEC/4A-25/2004 dated the 20th of June, 2005, was
issued directly to the petitioner. Smt. Piyali Chowdhury assumed her
charge as a contractual Data Processor on the 30th of June, 2005, well
within the mandate that her joining must occur no later than the 1st of
July, 2005.
75. The initial six-month contractual tenure, originally poised to terminate on
the 29th of December, 2005, marked the beginning of a prolonged period
37
of continuous service characterized by successive extensions. By Order
No. 3362-SEC/4A-25/04 dated the 11th of November, 2005, her contract
was extended for a further six months, stretching to the 30th of June,
2006. In an exhibition of administrative transparency, copies of both her
original appointment order and this initial extension were formally
transmitted to the Deputy Secretary (Home) Department at Writers'
Buildings and to the Accountant General (A&E), West Bengal. Satisfied
with her performance, the State Election Commissioner further extended
her contract for a full year, up to the 30th of June, 2007, vide Order No.
381-SEC/4A-25/04 dated the 10th of May, 2006.
76. However, prior to the expiration of this latest contractual extension, a
definitive shift in her employment status occurred. By virtue of Order No.
1046-SEC/4A-25/2004 dated the 6th of September, 2006, the respondent
no. 1 appointed the petitioner purely on a temporary basis to the post of
Data Processor, liberating her from the precariousness of a purely
contractual tenure and placing her squarely within the regular scale of
pay of Rupees 3350-6325/- with accompanying allowances, in precise
alignment with the original G.O. No. 634-Home (Cons.). Smt. Piyali
Chowdhury formally assumed this temporary post on the very date of the
order, while her co-petitioner, Smt. Moujhuri De, who had been selected
from the same original panel via an earlier order dated the 11th of May,
2005, had already integrated into the service on the 16th of May, 2005.
The continuity of these temporary posts was repeatedly preserved through
explicit gubernatorial interventions. Assistant Secretaries to the
Government of West Bengal issued successive Government Orders,
38
including G.O. No. 267-Home (Cons.) dated the 13th of August, 2007--
which operated in direct continuation of an earlier G.O. No. 20-
Home(Cons.) dated the 21st of February, 2006--to sanction the retention
of these temporary posts for further annual increments, including an
extension effective from the 20th of December, 2006. This pattern of
administrative preservation was maintained by subsequent orders, such
as G.O. No. 378-Home(Cons.)/RIE(Cons.)-10/2004 dated the 26th of
April, 2013, which extended the retention from the 20th of December,
2008, under the existing terms and conditions. The indispensability of
these posts was routinely articulated by the Commission's secretariat, as
evidenced by Memo No. 170-SEC/5E-1/94 dated the 5th of February,
2008, and Memo No. 928-SEC/A-4/94 dated the 2nd of September, 2014,
both pleading with the State Government for permanent retention and
regularisation.
77. The state apparatus continued to validate the petitioner's integration into
the civil service. On the 24th of April, 2009, the Secretary of the
Commission, via Order No. 335-SEC/2P-4/2009, extended to the
petitioner the financial benefits of the Revision of Pay and Allowance
(ROPA) Rules, 2009. Her unrevised pay scale was upgraded to a revised
pay band of Rupees 5400-25200/- with a basic pay of Rupees 8840/- and
a Grade Pay of Rupees 2600/-. This order was copied to the Accountant
General and the Home Departments without a single murmur of
administrative dissent. Furthermore, in November 2007, the office of the
Accountant General allotted a new General Provident Fund (G.P. Fund)
Account to the petitioner, and her formal declaration form of nomination
39
under the West Bengal Services (General Provident Fund) Rules was
officially recorded. The culmination of this process occurred through an
order vide No. 156-SEC/4A-4/1994(Pt.-II) dated the 5th of February,
2010. Signed by the Secretary of the Commission, this regulatory order
formally confirmed the petitioner's service with effect from the 6th of
September, 2006, under the explicit operation of Rule 5 of the West
Bengal Services (Appointment, Probation and Confirmation) Rules, 1969.
This final act of confirmation was duly forwarded to the Accountant
General (Audit I), completing her transition into a permanent civil servant.
78. This stable professional reality was suddenly and deeply disrupted. On
the 28th of March, 2016, the State Election Commissioner issued a formal
charge-sheet, vide Memo No. 263-SEC/1L-46/05(Part-I), enclosing
detailed Articles of Charge I, statements of imputation of misconduct or
misbehaviour, lists of sustaining documents, and a schedule of witnesses
under Rule 10 of the West Bengal Services (Classification, Control and
Appeal) Rules, 1971. This opening disciplinary measure was immediately
followed on the 30th of March, 2016, by a supplementary charge-sheet
under Memo No. 289-SEC/1L-46/05 (Part-I), introducing a
Supplementary Article of Charge I and its corresponding supporting
schedules. The petitioner was directed to submit her written statement of
defense within a brief window of seven days, failing which the inquiry
would proceed ex parte. The disciplinary machinery moved with
exceptional speed. On the 28th of March, 2016, the competent authority
appointed Mr. Osman Gani, the Secretary of the Commission, to act as
the Inquiring Authority, while Sri Anitendu Modok, the Account Officer,
40
was assigned the role of Presenting Officer. By a communication dated the
31st of March, 2016, the petitioner was directed to present herself for the
proceeding on the 8th of April, 2016, a rescheduled date from the
originally planned 4th of April. Smt. Piyali Chowdhury submitted her
comprehensive written statements of defense on the 8th of April, 2016,
explicitly denying all allegations. She emphasized that her original
qualifications and experience had been thoroughly vetted and accepted by
the respondents themselves over a decade prior, and she prayed for an
open inquiry, including the production of original documents and the
opportunity to cross-examine relevant document makers.
79. The inquiry was completed with remarkable celerity without affording the
petitioner the requested opportunities for documentation review or cross-
examination, culminating in an Enquiry Report dated the 13th of April,
2016, which found the charges sustained. On the 15th of April, 2016, a
second show-cause notice under Memo No. 345-SEC/1L-46/05 (Pt.-I) was
served upon the petitioner, demanding her response by the 22nd of April,
2016, regarding the findings and the proposed penalty of removal.
Although the petitioner sought an extension until the 27th of April to
formulate her reply, and subsequently requested a further ten-day
extension, her prayers were summarily rejected by the administration.
The entire process concluded on the 28th of April, 2016, when the State
Election Commissioner passed a final order, vide Memo No. 408-SEC/1L-
46/05 (Pt. I), mechanically removing Smt. Piyali Chowdhury from service.
By a parallel order bearing No. 407-SEC/1L-45/05 (Pt. I), issued on the
41
exact same date, the services of Smt. Moujhuri De were similarly
terminated.
80. In her quest for redress, the petitioner initially approached the West
Bengal Administrative Tribunal via O.A. No. 464 of 2016, seeking the
invalidation of the charge-sheets and the show-cause notices. However, by
an order dated the 30th of June, 2016, the learned Tribunal dismissed
the application, holding that the applicant did not occupy a civil post in
the true sense and therefore the Tribunal lacked statutory jurisdiction
under Section 15 of the Administrative Tribunals Act.
81. Driven to seek a definitive judicial remedy, Smt. Piyali Chowdhury
approached this Court through Writ Petition No. 22568 of 2016, seeking
the quashing of the original and supplementary charge-sheets, the
complete setting aside of the Enquiry Report, the second show-cause
notice, and the total invalidation of the final order of removal. Smt.
Moujhuri De similarly initiated Writ Petition No. 23774 of 2016 to
challenge her concurrent removal. The petitioners rest their judicial plea
on the ground that their appointments, ongoing retentions, scale
upgrades under ROPA 2009, and statutory confirmation under the 1969
Rules were conducted in strict compliance with the law, with the
uninterrupted participation of the state's central departments. They argue
that an employment relationship verified, maintained, and formally
confirmed by the State over eleven years cannot be abruptly dissolved
through a sudden exercise of disciplinary power based on archaic
selection processes. They point out that under prevailing Government
Orders, such as G.O. No. 9008-F(P) dated the 16th of September, 2011,
42
even contractual employees with ten years of continuous service are
entitled to security of tenure until the age of 60. Furthermore, they assert
that the principles established in the landmark Uma Devi judgment are
entirely inapplicable to their validly confirmed positions. These petitions
place a clear obligation upon the Court to determine whether these
terminations represent a lawful exercise of administrative correction or an
arbitrary, disproportionate abuse of executive power that fundamentally
violates Articles 14, 16, and 21 of the Constitution of India along with the
principles of natural justice.
82. The claim of the respondent Election Commission to rectify or undo a
process which was initially illegal and beyond statutory jurisdiction to
extend the contractual employment of both the petitioners beyond six
months for lack of institutional and legal process of appointment is
untenable. It is preposterous to declare the continuation of service of the
petitioners' has been extended from time to time to be an act on the part
of the respondent Election Commission exceeding its jurisdiction and on
detection to correct the same, extinguished the service of the petitioners'
in the disguise of initiating disciplinary proceedings is absolutely
capricious and irrational.
83. It was emphatically submitted by the Learned Advocate representing the
respondent Election Commission that an illegal act and appointment
contrary to the constitutional mandate could not be extended in future
exemplifying unconstitutional precedent. No wrongdoing can be allowed to
proceed or continue with on detection or identification of the same at a
moment immediately necessitating remedial measures to redress the
43
same to attain legality, transparency and solidarity. The service of the
petitioners were not to be governed by the Election Commission and could
not have been prolonged without sanctioned imprimatur.
84. It is primordial therefore to conceptualise the provision of Section 7 of the
West Bengal State Election Commission Act, 1994 and the distinctive
concept of "illegal" and "irregular appointment" and its effect.
85. Section 7 of the West Bengal State Election Commission Act, 1994 states
as follows:-
"7. Staff of Commission. - (1) The Commission shall have such staff,
made available to it by the Governor when so requested by it, as may
be necessary for the discharge of the functions conferred on it by sub-
section (1) of section 4 and sub-section (1) of section 5.
(2) The terms and conditions of service of the members of the staff
made available to the Commission by the Governor shall be regulated in
accordance with the rules regulating the terms and conditions of service
of the employees of the State Government for the time being in force."
86. In the understanding of this Court, the statutory mechanism governing
the administrative backbone of the West Bengal State Election
Commission finds its foundational anchor in Section 7 of the West Bengal
State Election Commission Act, 1994. Designed to breathe operational life
into the constitutional mandates of Articles 243K and 243ZA of the
Constitution of India, Section 7 sets out the parameters for staffing the
Commission, balancing municipal autonomy with state-executive
department.
87. Section 7 is divided into two distinct, interconnected subsections that
demarcate how the Commission acquires its human resources and under
44
what terms those resources operate. Section 7(1): The Commission shall
have such staff, made available to it by the Governor when so requested
by it, as may be necessary for the discharge of the functions conferred on
it by sub-section (1) of section 4 and sub-section (1) of section 5. This
subsection replicates the constitutional provisions contained in Article
243K(3) (for Panchayats) and Article 243ZA(2)(for Municipalities). The use
of the word "shall" imposes a mandatory statutory obligation upon the
executive (via the Governor) to supply adequate personnel upon a formal
requisition by the State Election Commissioner. The staff made available
under this section are designated strictly for the execution of duties under
Section 4(1)(superintendence, direction, and control of electoral rolls and
local body elections) and Section 5(1) of the Act. While the State Election
Commission is an independent constitutional authority, it possesses no
independent, separate cadre of permanent employees of its own. It
remains structurally dependent on the State Government to provide the
administrative machinery required to execute democratic processes.
Section 7(2): The terms and conditions of service of the members of the
staff made available to the Commission by the Governor shall be
regulated in accordance with the rules regulating the terms and
conditions of service of the employees of the State Government for the
time being in force. This subsection ensures that state employees placed
on deputation or made available to the Commission do not suffer any
disadvantage in their service conditions. Their service remains governed
by standard state rules, most notably the West Bengal Service Rules
(WBSR) and the prevailing Revision of Pay and Allowance (ROPA) Rules. It
45
establishes a unique legal matrix where the staff is subject to the
operational and disciplinary control of the State Election Commission for
election-related misconduct, while remaining fundamentally tethered to
the service conditions, benefits, and retirement frameworks governed by
the State Government.
88. From the knowledge gathered by this presiding Court through prior
administrative functions, it is opined the operationalization of Section 7
follows a precise chronological and legal methodology:
[State Election Commission] - (Formal Requisition) - [The Governor/State
Home Dept.] (G.O./Sanction of Posts) [State Personnel / Temporary
Cadre] - (Placed at Disposal) - [Operational Control of SEC].
89. Anticipating an election cycle or regular municipal/panchayat
governance, the State Election Commission assesses its infrastructural
requirements and issues a formal requisition to the Governor (practically
routed through the Home Department or Municipal Affairs/Panchayat
Departments).
90. In response, the State Government issues a Government Order
(G.O.)concurred in by the Finance Department, sanctioning the creation,
retention, or deployment of specific temporary or permanent posts (e.g.,
Data Processors, Stenographers, Cashiers) for the Commission's office.
3. Staff are integrated into the Commission through two primary
procedural pathways:
91. Deputation/Transfer: Drawing active civil servants from existing state
departments and placing them at the disposal of the Commission.
Direct Temporary/Contractual Recruitment against Sanctioned Posts:
46
Where the state gives a "no objection" clearance to fill sanctioned
temporary vacancies through public advertisements and selection
committees, which are subsequently regularized or confirmed under
standard state rules (such as the West Bengal Services (Appointment,
Probation and Confirmation) Rules, 1969). The legal effects of Section 7
dictate the outcome of service litigation arising out of the State Election
Commission.
92. The Statutory Fiction of Public Service once staff are made available
under Section 7(1), they are legally deemed to be on deputation to a
constitutional authority. For the duration of their tenure, their actions
carry the full weight of public duties. Any arbitrary termination or
disciplinary action initiated against them cannot be treated as a mere
private contractual dispute; it is subject to public law judicial review
under Article 226 of the Constitution.
93. Protection of Service Conditions By virtue of Section 7(2), the State
Government cannot selectively deny standard benefits--such as the
application of ROPA scales, General Provident Fund (GPF) allocations, or
confirmation benefits--to staff working within the Commission, provided
their initial appointment was executed against validly sanctioned posts.
94. The Decoupling of Appointments from Section 7 Violations
In cases where employees face sudden, retroactive dismissals under the
guise that their recruitment was "unauthorized" or violated the parent
Act, Section 7 serves as a shield. If the narrative history reveals that:
a)The posts were sanctioned by a valid G.O., b) The Finance Department
concurred, and c) Gubernatorial sanction was renewed systematically
47
over years. The courts will hold that the appointment was done purely in
accordance with law under Section 7. Consequently, the state cannot
invoke Section 7 to label such employees as "outsiders" or temporary
contractual entities devoid of statutory protection, effectively estopping
the Disciplinary Authority from summarily dismantling their confirmed
service tenures without due process under the 1971 Classification,
Control and Appeal Rules.
95. This statutory provision does not merely outline an administrative
arrangement but rather bridges a vital gap, establishing a dependable
legal framework where an independent constitutional authority, lacking a
permanent cadre of its own, is provided with the human resources
necessary to execute democratic processes at the grass-roots level. By
analyzing its text, one observes a deliberate division of labor between the
state executive and the election authority, balancing operational
independence with logistical dependence.
96. The first sub-section of this provision sets in motion a mandatory
requisitionary mechanism. The legislative choice of the word "shall"
imposes an obligation upon the executive, acting through the Governor, to
place adequate personnel at the disposal of the Commission upon a
formal request. This requirement ensures that the vital public duties of
supervising, directing, and controlling the preparation of electoral rolls
and conducting local body elections are never halted by a lack of
administrative staff. It creates a legal arrangement where staff are
provided to the Commission, transforming their daily duties into a unique
form of public service that carries constitutional importance.
48
97. The second sub-section introduces an essential stabilizing element of
regulatory parity, guaranteeing that the terms and conditions of service
for employees placed at the disposal of the Commission remain identical
to those governing standard state government servants. This provision
ensures that employees do not suffer any financial or professional
disadvantage by virtue of their deployment to the Commission. They
remain fundamentally protected by the West Bengal Service Rules and
prevailing Revision of Pay and Allowance Rules, ensuring access to
regular scale increments, grade pay adjustments, and long-term security
benefits like the General Provident Fund. This establishes a dual matrix of
control where operational and disciplinary oversight during election cycles
rests with the Commission, while core service conditions remain securely
tethered to established state regulations.
98. In terms of formal procedure, the operationalization of Section 7 follows a
precise, collaborative administrative process. The journey begins with a
formal assessment of infrastructural needs by the Commission, which is
then sent as a requisition to the state government. This is answered by a
formal Government Order, issued with the essential concurrence of the
Finance Department, which creates or retains specific temporary or
permanent posts to support the Commission's functions. Whether these
positions are filled by transferring active civil servants or through direct
temporary recruitment against sanctioned vacancies via public selection
panels, the entire process is validated by systematic gubernatorial
sanctions renewed across consecutive fiscal terms. This removes any
suggestion of irregular or unauthorized recruitment.
49
99. The legal effect of this statutory framework becomes highly relevant when
courts review sudden disciplinary actions or termination orders issued to
regularized staff. When an employee is appointed against a sanctioned
post, granted a regular scale under ROPA, assigned a provident fund
account, and formally confirmed under the West Bengal Services Rules of
1969, the state cannot easily reverse this position. Section 7 prevents the
disciplinary authority from suddenly treating these confirmed tenures as
casual or unprotected contractual arrangements. Because the initial
appointments were made using a valid statutory pathway backed by
regular government orders, any attempt to dismiss such personnel
without following due process under the 1971 Classification, Control, and
Appeal Rules is legally unsustainable. Section 7 thus stands as a vital
shield, ensuring that administrative consistency and procedural fairness
protect individuals who have dedicated years of service to the
constitutional work of the Commission.
86. The conceptual boundary distinguishing an "illegal" appointment from a
mere "irregular" one constitutes a vital focal point in public service
jurisprudence, serving as an equitable shield against the retrospective
and arbitrary dismantling of long-settled employment tenures. This
distinction is not an academic exercise in nomenclature; it determines
whether the historic induction of a citizen into the state apparatus can be
summarily declared a nullity, or whether it has been regularized by the
passage of time, systematic state endorsement, and the formal
confirmation of service under statutory rules.
50
87. An illegal appointment, in its strict jurisprudential sense, occurs when
the very initiation of the recruitment process violates a fundamental, non-
negotiable constitutional or statutory mandate. This happens when an
individual is inducted into a public post completely outside the open,
competitive arena of public selection, bypassing the essential
requirements of notice, advertisement, and equal opportunity enshrined
in Articles 14 and 16 of the Constitution of India. Such an entry is void ab
initio, a legal nullity from its inception, which cannot be cured, validated,
or regularized by any subsequent passage of time or administrative
action. The supreme judicial authority in State of Karnataka v. Umadevi
(2006) 4 SCC 1 firmly condemned these back-door entries, clarifying that
when an appointment is made without any public notice, clear invitation
of applications, or a competitive evaluation of comparative merit, it
constitutes a structural violation of the constitutional scheme that cannot
be condoned under the guise of regularisation.
88. Conversely, an irregular appointment represents an exercise where the
essential constitutional obligations of transparency and competition are
broadly met, but the administrative process suffers from procedural
omissions, minor technical deficiencies, or an absence of formally
finalized recruitment rules at the time of initial induction. In these
instances, the appointment is not an unconstitutional intrusion into
public service; rather, it is a bona fide recruitment executed through an
established institutional mechanism, such as an open notice-board
advertisement, a functioning selection panel, or an evaluation of technical
credentials, which is later found to have lacked a specific procedural
51
formality. The state cannot equate such procedural imperfections with the
severe defect of an illegal entry. This jurisprudential distinction was
clarified by the Supreme Court of India in the following decisions:-
89. The Hon'ble Supreme Court, in the case of AMARKANT RAI VS STATE
OF BIHAR & ORS1., has made the following observations:
"11. As noticed earlier, the case of the appellant was referred to Three
Members Committee and Three Members Committee rejected the claim
of the appellant declaring that his appointment is not in consonance
with the ratio of the decision laid down by this Court in Umadevi's case
(supra). In Umadevi's case, even though this Court has held that the
appointments made against temporary or ad-hoc are not to be
regularized, in para 53 of the judgment, it provided that irregular
appointment of duly qualified persons in duly sanctioned posts who
have worked for 10 years or more can be considered on merits and
steps to be taken one time measure to regularize them. In para 53, the
Court observed as under :
"53. One aspect needs to be clarified. There may be cases where
irregular appointments (not illegal appointments) as explained in S.V.
Narayanappa, R.N. Nanjundappa and B.N. Nagarajan and referred to
in para 15 above, of duly qualified persons in duly sanctioned vacant
posts might have been made and the employees have continued to work
for ten years or more but without the intervention of orders of the courts
or of tribunals. The question of regularisation of the services of such
employees may have to be considered on merits in the light of the
principles settled by this Court in the cases abovereferred to and in the
light of this judgment. In that context, the Union of India, the State
Governments and their instrumentalities should take steps to regularise
as a one-time measure, the services of such irregularly appointed, who
have worked for ten years or more in duly sanctioned posts but not
under cover of orders of the courts or of tribunals and should further
ensure that regular recruitments are undertaken to fill those vacant
sanctioned posts that require to be filled up, in cases where temporary
employees or daily wagers are being now employed. The process must
be set in motion within six months from this date. We also clarify that
regularisation, if any already made, but not sub judice, need not be
reopened based on this judgment, but there should be no further
1
2015 AIR SCW 3080
52
bypassing of the constitutional requirement and regularising or making
permanent, those not duly appointed as per the constitutional scheme."
The objective behind the exception carved out in this case was
prohibiting regularization of such appointments, appointed persons
whose appointments is irregular but not illegal, ensure security of
employment of those persons who served the State Government and
their instrumentalities for more than ten years.
12. Elaborating upon the principles laid down in Umadevi's case (supra)
and explaining the difference between irregular and illegal
appointments in State of Karnataka & Ors. v. M.L. Kesari & Ors., (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) , 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."
90. The Hon'ble Supreme Court, in the case of VINOD KUMAR AND ORS VS
UNION OF INDIA2, has made the following observations:
"7. The judgement in the case Uma Devi (supra) also distinguished
between "irregular" and "illegal" appointments underscoring the
importance of considering certain appointments even if were not made
strictly in accordance with the prescribed Rules and Procedure, cannot
be said to have been made illegally if they had followed the procedures
of regular appointments such as conduct of written examinations or
2
2024 INSC 332
53
interviews as in the present case. Paragraph 53 of the Uma Devi (supra)
case is reproduced hereunder:
53. One aspect needs to be clarified. There may be cases where
irregular appointments (not illegal appointments) as explained in S.V.
Narayanappa [(1967) 1 SCR 128 : AIR 1967 SC 1071] , R.N.
Nanjundappa [(1972) 1 SCC 409 :
(1972) 2 SCR 799] and B.N. Nagarajan [(1979) 4 SCC 507 : 1980 SCC
(L&S) 4 : (1979) 3 SCR 937] and referred to in para 15 above, of duly
qualified persons in duly sanctioned vacant posts might have been
made and the employees have continued to work for ten years or more
but without the intervention of orders of the courts or of tribunals. The
question of regularisation of the services of such employees may have to
be considered on merits in the light of the principles settled by this
Court in the cases above referred to and in the light of this judgment. In
that context, the Union of India, the State Governments and their
instrumentalities should take steps to regularise as a one-time measure,
the services of such irregularly appointed, who have worked for ten
years or more in duly sanctioned posts but not under cover of orders of
the courts or of tribunals and should further ensure that regular
recruitments are undertaken to fill those vacant sanctioned posts that
require to be filled up, in cases where temporary employees or daily
wagers are being now employed. The process must be set in motion
within six months from this date. We also clarify that regularisation, if
any already made, but not sub judice, need not be reopened based on
this judgment, but there should be no further bypassing of the
constitutional requirement and regularising or making permanent, those
not duly appointed as per the constitutional scheme."
54
91. The Hon'ble Supreme Court, in the case of THE STATE OF BIHAR VS
DEVENDRA SHARMA3, has made the following observations:
" 9) The Division Bench held that in view of the appointments being
illegal and void ab initio, the services cannot be reguarlised and that
the judgment of the Division Bench of the High Court in Binay Kumar
Singh is contrary to the Full Bench judgment in Ram Sevak Yadav
&Anr. v. The State of Bihar & Ors9, wherein the appellants were
appointed on Class IV posts by the Civil Surgeon in the Health
Department as in the present set of appeals but their services were
terminated in the year 2001 for the reason that their appointments were
illegal. The Full Bench of the High Court held as under:
"41. The public power to make appointment on public posts is conferred
for public good. The power is given to the officer concerned by the
government in trust, that it shall be used and not abused. If the trust is
belied, the protection conferred upon a government servant stands
denuded. The answerability and accountability is then individual of the
officer. The government is duty bound to take appropriate civil/criminal
action against the officer. The illegality in the appointment is not a one
way street. If there was someone willing to pay a price for the job, there
was another waiting to take advantage of the same by fixing a price. It
is not without reason that majority of such appointments relate to class
III and IV posts. The standard by which the government professes to act
is the same standard by which its actions shall be judged.
Therefore whenever the government terminates an appointment being
illegal, it is the constitutional duty of the government to simultaneously
take action against the officials who belied the trust of the government.
Those who made hay while the sun shined must see the darker cloudy
days also.......
10. "...xx xxxx This brings us to the last question whether in view of
their long service, the writ petitioners are entitled to regularization in
3
AIRONLINE 2019 SC 1226
55
service as observed by the Hon'ble Supreme Court in Uma Devi (3)
(supra). This was the precise question which was referred to the Full
Bench in the matter of Ram Sevak Yadav &Anr. (supra). The Full Bench
of this Court has categorically held that the judgment in Uma Devi
(supra), prohibits regularization of such appointments, the period of
service being irrelevant; and that illegal appointment void abinitio
cannot be regularised under any circumstances. In view of the
aforesaid decision of the Full Bench of this Court, the law laid down by
the Division Bench of this Court in the matter of The State of Bihar &
Ors. Vs. Binay Kumar Singh & Ors. [2011 (3) PLJR 547] is no longer a
good law."
36) We do not find any merit in the said argument. A Full Bench of the
High Court in Rita Mishra & Ors. v. Director, Primary Education, Bihar
& Ors.11 while dealing with appointment in the education department
claiming salary despite the fact that letter of appointment was forged,
fraudulent or illegal, declined such claim. It was held that the right to
salary stricto sensu springs from a legal right to validly hold the post for
which salary is claimed. It is a right consequential to a valid
appointment to such post. Therefore, where the very root is non-existent,
there cannot subsist a branch thereof in the shape of a claim to salary.
The rights to salary, pension and other service benefits are entirely
statutory in nature in public service. Therefore, these rights, including
the right to salary, spring from a valid and legal appointment to the
post. Once it is found that the very appointment is illegal and is non est
in the eye of law, no statutory entitlement for salary or consequential
rights of pension and other monetary benefits can arise.
37. "...1987 BBCJ 701 (FB)] . The question posed before the Full Bench
was whether a public servant was entitled to payment of salary to him
for the work done despite the fact that his letter of appointment was
forged, fraudulent or illegal. The Full Bench held: (AIR p. 32, para 13)
"13. It is manifest from the above that the rights to salary, pension and
other service benefits are entirely statutory in nature in public service.
56
Therefore, these rights, including the right to salary, spring from a valid
and legal appointment to the post. Once it is found that the very
appointment is illegal and is non est in the eye of the law, no statutory
entitlement for salary or consequential rights of pension and other
monetary benefits can arise. In particular, if the very appointment is
rested on forgery, no statutory right can flow from it."
92. The Hon'ble Supreme Court, in the case of STATE OF KARNATAKA &
ORS VS M.L. KESARI & ORS4., has made the following observations:
" 4. The decision in State of Karnataka v. Umadevi was rendered on
10.4.2006 (reported in 2006 (4) SCC 1). In that case, a Constitution
Bench of this Court held that appointments made without following the
due process or the rules relating to appointment did not confer any right
on the appointees and courts cannot direct their absorption,
regularization or re- engagement nor make their service permanent, and
the High Court in exercise of jurisdiction under Article 226 of the
Constitution should not ordinarily issue directions for absorption,
regularization, or permanent continuance unless the recruitment had
been done in a regular manner, in terms of the constitutional scheme;
and that the courts must be careful in ensuring that they do not
interfere unduly with the economic arrangement of its affairs by the
State or its instrumentalities, nor lend themselves to be instruments to
facilitate the bypassing of the constitutional and statutory mandates.
This Court further held that a temporary, contractual, casual or a daily-
wage employee does not have a legal right to be made permanent
unless he had been appointed in terms of the relevant rules or in
adherence of Articles 14 and 16 of the Constitution. This Court however
made one exception to the above position and the same is extracted
below :
"53. One aspect needs to be clarified. There may be cases where
irregular appointments (not illegal appointments) as explained in S.V.
4
AIR 2010 SUPREME COURT 2587
57
Narayanappa [1967 (1) SCR 128], R.N. Nanjundappa [1972 (1) SCC
409] and B.N. Nagarajan [1979 (4) SCC 507] and referred to in para 15
above, of duly qualified persons in duly sanctioned vacant posts might
have been made and the employees have continued to work for ten
years or more but without the intervention of orders of the courts or of
tribunals. The question of regularization of the services of such
employees may have to be considered on merits in the light of the
principles settled by this Court in the cases abovereferred to and in the
light of this judgment. In that context, the Union of India, the State
Governments and their instrumentalities should take steps to regularize
as a one-time measure, the services of such irregularly appointed, who
have worked for ten years or more in duly sanctioned posts but not
under cover of orders of the courts or of tribunals and should further
ensure that regular recruitments are undertaken to fill those vacant
sanctioned posts that require to be filled up, in cases where temporary
employees or daily wagers are being now employed. The process must
be set in motion within six months from this date. ...."
5. It is evident from the above that there is an exception to the general
principles against `regularization' enunciated in Umadevi, 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
58
selected without undergoing the process of open competitive selection,
such appointments are considered to be irregular.
Umadevi casts a duty upon the concerned Government or
instrumentality, to take steps to regularize the services of those
irregularly appointed employees who had served for more than ten
years without the benefit or protection of any interim orders of courts or
tribunals, as a one-time measure. Umadevi, directed that such one-time
measure must be set in motion within six months from the date of its
decision (rendered on 10.4.2006)."
93. The Hon'ble Supreme Court had held the following inDHARAM SINGH VS
STATE OF UP5:
" 11. Furthermore, it must be clarified that the reliance placed by the
High Court on Umadevi (Supra) to non- suit the appellants is misplaced.
Unlike Umadevi (Supra), the challenge before us is not an invitation to
bypass the constitutional scheme of public employment. It is a challenge
to the State's arbitrary refusals to sanction posts despite the employer's
own acknowledgement of need and decades of continuous reliance on
the very workforce. On the other hand, Umadevi (Supra) draws a
distinction between illegal appointments and irregular engagements
and does not endorse the perpetuation of precarious employment where
the work itself is permanent and the State has failed, for years, to put
its house in order. Recent decisions of this Court in Jaggo v. Union of
India4 and in Shripal & Another v. Nagar Nigam, Ghaziabad5 have
emphatically cautioned that Umadevi (Supra) cannot be deployed as a
shield to justify exploitation through long-term "ad hocism", the use of
outsourcing as a proxy, or the denial of basic 4 2024 SCC OnLine SC
3826.5 2025 SCC OnLine SC 221.parity where identical duties are
exacted over extended periods. The principles articulated therein apply
with full force to the present case. The relevant paras from Shripal
(supra) have been reproduced hereunder:
5
2025 INSC 998
59
"14. The Respondent Employer places reliance on Umadevi (supra)2 to
contend that daily-wage or temporary employees cannot claim
permanent absorption in the absence of statutory rules providing such
absorption. However, as frequently reiterated, Uma Devi itself
distinguishes between appointments that are "illegal" and those that
are "irregular," the latter being eligible for regularization if they meet
certain conditions. More importantly, Uma Devi cannot serve as a shield
to justify exploitative engagements persisting for years without the
Employer undertaking legitimate recruitment. Given the record which
shows no true contractor-based arrangement and a consistent need for
permanent horticultural staff the alleged asserted ban on fresh
recruitment, though real, cannot justify indefinite daily-wage status or
continued unfair practices.
15. It is manifest that the Appellant Workmen continuously rendered
their services over several years, sometimes spanning more than a
decade.
Even if certain muster rolls were not produced in full, the Employer's
failure to furnish such records- despite directions to do so-allows an
adverse inference under well-established labour jurisprudence. Indian
labour law strongly disfavors perpetual daily-wage or contractual
engagements in circumstances where the work is permanent in nature.
Morally and legally, workers who fulfil ongoing municipal requirements
year after year cannot be dismissed summarily as dispensable,
particularly in the absence of a genuine contractor agreement. At this
juncture, it would be appropriate to recall the broader critique of
indefinite "temporary" employment practices as done by a recent
judgment of this court in Jaggo v. Union of India3 in the following
paragraphs:
"22. The pervasive misuse of temporary employment contracts, as
exemplified in this case, reflects a broader systemic issue that
adversely affects workers' rights and job security. In the private sector,
the rise of the gig economy has led to an increase in precarious
employment arrangements, often characterized by lack of benefits, job
60
security, and fair treatment. Such practices have been criticized for
exploiting workers and undermining labour standards. Government
institutions, entrusted with upholding the principles of fairness and
justice, bear an even greater responsibility to avoid such exploitative
employment practices. When public sector entities engage in misuse of
temporary contracts, it not only mirrors the detrimental trends observed
in the gig economy but also sets a concerning precedent that can erode
public trust in governmental operations."
94. The Hon'ble Supreme Court has held the following in SHRIPAL VS
NAGAR NIGAM, GHAZIABAD6:
" 14. The Respondent Employer places reliance on Umadevi (supra)2 to
contend that daily-wage or temporary employees cannot claim
permanent absorption in the absence of statutory rules providing such
absorption. However, as frequently reiterated, Uma Devi itself
distinguishes between appointments that are "illegal" and those that
are "irregular," the latter being eligible for regularization if they meet
certain conditions. More importantly, (2006) 4 SCC 1.
Uma Devi cannot serve as a shield to justify exploitative engagements
persisting for years without the Employer undertaking legitimate
recruitment. Given the record which shows no true contractor- based
arrangement and a consistent need for permanent horticultural staff the
alleged asserted ban on fresh recruitment, though real, cannot justify
indefinite daily-wage status or continued unfair practices.
15. It is manifest that the Appellant Workmen continuously rendered
their services over several years, sometimes spanning more than a
decade. Even if certain muster rolls were not produced in full, the
Employer's failure to furnish such records--despite directions to do so--
allows an adverse inference under well-established labour
jurisprudence. Indian labour law strongly disfavors perpetual daily-
wage or contractual engagements in circumstances where the work is
permanent in nature. Morally and legally, workers who fulfil ongoing
6
2025 INSC 144
61
municipal requirements year after year cannot be dismissed summarily
as dispensable, particularly in the absence of a genuine contractor
agreement."
95. The Hon'ble Supreme Court has held the following in PAWAN KUMAR
TIWARY VS JHARKHAND STATE ELECTRICITY BOARD 7:-
"25. This Court has in several decisions, including State of Bihar v.
Upendra Narayan Singh and Others4 , emphasized that when
appointments are found to be irregular, the inquiry must focus on
whether such irregularity amounts to illegality, and whether the
appointee had any role or knowledge of the deviation. If not, and the
appointee was otherwise eligible, qualified, and appointed against a
sanctioned vacancy, there is no justification for nullifying such
appointment. The present appellants, as evidenced by record, fulfilled
all eligibility conditions, were appointed within the sanctioned strength,
and underwent the requisite selection process.
26. It is here that the doctrine of severability assumes great
significance. The rule is grounded in equity and legal logic: where bad
can be separated from good, the good must not perish with the bad. The
doctrine, though largely applied in constitutional and statutory
interpretation, has gained considerable traction in service jurisprudence
where a set of appointments are sought to be invalidated en masse.
27. The doctrine of severability is not merely a tool of constitutional
adjudication but a principle of fairness. In service law, it protects
deserving employees from the fallout of administrative missteps not
attributable to them."
96. The Hon'ble Supreme Court has held the following in THE STATE OF
BIHAR VS KIRTI NARAYAN PRASAD8:-
7
2025 INSC 1000
8
(2019) 13 SCC 250
62
"15. In some of the LPAs the Division Bench appears to have followed
paragraph 11 in M.L. Kesari (supra) for directing regularisation of
service without considering the observations contained in paragraph 7
of the judgment. In paragraph 11, it was observed that "the true effect
of the direction is that all persons who have worked for more than ten
years as on 10.4.2006 [the date of decision in Umadevi (3)] without the
protection of any interim order of any court or tribunal, in vacant posts,
possessing the requisite qualification, are entitled to be considered for
regularisation within six months of the decision in Umadevi (3) as a one-
time measure ............". However, in paragraph 7 after considering
Umadevi (supra) this Court has categorically held that for
regularisation, the appointment of employee should not be illegal even if
irregular.
"7. It is evident from the above that there is an exception to the general
principles against "regularisation" enunciated in Umadevi (3), 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."
97. The Hon'ble Supreme Court has held the following in SIRAJ AHMAD VS
THE STATE OF UTTAR PRADESH 9 :-
"11. This court in the case of State of M.P. and ors. vs. Lalit Kumar
Verma3, after considering the Judgment of Constitution Bench of this
Court in the case of Secy., State of Karnataka vs. Uma Devi(3)4,
observed thus :3(2007)1 SCC 575 4 (2006) 4 SCC 1 "12. The question
9
AIRONLINE 2019 SC 1771
63
which, thus, arises for consideration, would be: Is there any distinction
between "irregular appointment" and "illegal appointment"? The
distinction between the two terms is apparent. In the event the
appointment is made in total disregard of the constitutional scheme as
also the recruitment rules framed by the employer, which is "State"
within the meaning of Article 12 of the Constitution of India, the
recruitment would be an illegal one; whereas there may be cases
where, although, substantial compliance with the constitutional scheme
as also the rules have been made, the appointment may be irregular in
the sense that some provisions of some rules might not have been
strictly adhered to."
12. It can thus be seen that this court has held that the distinction
between irregular appointment and illegal appointment is clear. It has
been held that in the event appointment is made in total disregard to
the constitutional scheme and the recruitment rules framed by the
employer, where the employer is a "State" within the meaning of Article
12 of the Constitution of India, the recruitment will be illegal one. It has
however been held, that where although, substantial compliance with
the constitutional scheme, as also the rules have been made, the
appointment would become irregular in as much as the some provisions
of some rules have been adhered to.
13. Subsequently another bench of this Court in the case of State of
Karnataka and Others vs. M. L. Kesari and Others5 also had an
occasion to consider the issue. The Court observed thus :
"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] , 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
64
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."
14. This court held, that where the appointment are not made or
continued against sanctioned posts or where the 5(2010) 9 SCC 247
persons appointed do not possess the prescribed minimum
qualifications, the appointment will be considered to be illegal.
However, when the person employed possessed the prescribed
qualifications and is working against the sanctioned posts, but had
been selected without undergoing the process of open competitive
selection, such appointments are considered to be irregular."
98. The Hon'ble 5 Judges Bench of the Hon'ble Supreme Court, in the case of
SECRETARY, STATE OF KARNATAKA AND OTHERS vs. UMADEVI(3)
AND OTHERS10, have made the following observations:
"16. In B.N. Nagarajan v. State of Karnataka [(1979) 4 SCC 507 : 1980
SCC (L&S) 4 : (1979) 3 SCR 937] this Court clearly held that the words
"regular" or "regularisation" do not connote permanence and cannot be
construed so as to convey an idea of the nature of tenure of
appointments. They are terms calculated to condone any procedural
irregularities and are meant to cure only such defects as are
attributable to methodology followed in making the appointments. .....
We have, therefore, to keep this distinction in mind and proceed on the
10
(2006) 4 SCC 1
65
basis that only something that is irregular for want of compliance with
one of the elements in the process of selection which does not go to the
root of the process, can be regularised and that it alone can be
regularised and granting permanence of employment is a totally
different concept and cannot be equated with regularisation.
31. In Ashwani Kumar v. State of Bihar [(1997) 2 SCC 1 : 1997 SCC
(L&S) 465 : 1996 Supp (10) SCR 120] this Court was considering the
validity of confirmation of the irregularly employed. It was stated : (SCC
p. 17, para 13)
"13. So far as the question of confirmation of these employees whose
entry itself was illegal and void, is concerned, it is to be noted that
question of confirmation or regularisation of an irregularly appointed
candidate would arise if the candidate concerned is appointed in an
irregular manner or on ad hoc basis against an available vacancy
which is already sanctioned. But if the initial entry itself is
unauthorised and is not against any sanctioned vacancy, question of
regularising the incumbent on such a non-existing vacancy would never
survive for consideration and even if such purported regularisation or
confirmation is given it would be an exercise in futility."
This Court further stated : (SCC pp. 18-19, para 14)
"14. In this connection it is pertinent to note that question of
regularisation in any service including any government service may
arise in two contingencies. Firstly, if on any available clear vacancies
which are of a long duration appointments are made on ad hoc basis or
daily-wage basis by a competent authority and are continued from time
to time and if it is found that the incumbents concerned have continued
to be employed for a long period of time with or without any artificial
breaks, and their services are otherwise required by the institution
which employs them, a time may come in the service career of such
employees who are continued on ad hoc basis for a given substantial
length of time to regularise them so that the employees concerned can
66
give their best by being assured security of tenure. But this would
require one precondition that the initial entry of such an employee must
be made against an available sanctioned vacancy by following the rules
and regulations governing such entry. The second type of situation in
which the question of regularisation may arise would be when the
initial entry of the employee against an available vacancy is found to
have suffered from some flaw in the procedural exercise though the
person appointing is competent to effect such initial recruitment and has
otherwise followed due procedure for such recruitment. A need may
then arise in the light of the exigency of administrative requirement for
waiving such irregularity in the initial appointment by a competent
authority and the irregular initial appointment may be regularised and
security of tenure may be made available to the incumbent concerned.
But even in such a case the initial entry must not be found to be totally
illegal or in blatant disregard of all the established rules and
regulations governing such recruitment."
53. One aspect needs to be clarified. There may be cases where
irregular appointments (not illegal appointments) as explained in S.V.
Narayanappa [(1967) 1 SCR 128 : AIR 1967 SC 1071] , R.N.
Nanjundappa [(1972) 1 SCC 409 : (1972) 2 SCR 799] and B.N.
Nagarajan [(1979) 4 SCC 507 : 1980 SCC (L&S) 4 : (1979) 3 SCR 937]
and referred to in para 15 above, of duly qualified persons in duly
sanctioned vacant posts might have been made and the employees
have continued to work for ten years or more but without the
intervention of orders of the courts or of tribunals. The question of
regularisation of the services of such employees may have to be
considered on merits in the light of the principles settled by this Court in
the cases above referred to and in the light of this judgment. In that
context, the Union of India, the State Governments and their
instrumentalities should take steps to regularise as a one-time measure,
the services of such irregularly appointed, who have worked for ten
years or more in duly sanctioned posts but not under cover of orders of
67
the courts or of tribunals and should further ensure that regular
recruitments are undertaken to fill those vacant sanctioned posts that
require to be filled up, in cases where temporary employees or daily
wagers are being now employed."
99. The Hon'ble Supreme Court, in the case of SIRAJ AHMAD vs. STATE OF
UTTAR PRADESH AND ANOTHER11, has made the following
observations: -
"11. This Court in State of M.P. v. Lalit Kumar Verma [State of
M.P. v. Lalit Kumar Verma, (2007) 1 SCC 575 : (2007) 1 SCC (L&S) 405]
, after considering the judgment of the Constitution Bench of this Court
in State of Karnataka v. Umadevi (3) [State of Karnataka v. Umadevi (3),
(2006) 4 SCC 1 : 2006 SCC (L&S) 753] , observed thus : (Lalit Kumar
Verma case [State of M.P. v. Lalit Kumar Verma, (2007) 1 SCC 575 :
(2007) 1 SCC (L&S) 405] , SCC p. 581, para 12)
"12. The question which, thus, arises for consideration, would be : Is
there any distinction between "irregular appointment" and "illegal
appointment"? The distinction between the two terms is apparent. In the
event the appointment is made in total disregard of the constitutional
scheme as also the recruitment rules framed by the employer, which is
"State" within the meaning of Article 12 of the Constitution of India, the
recruitment would be an illegal one; whereas there may be cases
where, although, substantial compliance with the constitutional scheme
as also the rules have been made, the appointment may be irregular in
the sense that some provisions of some rules might not have been
strictly adhered to."
12. It can thus be seen that this Court has held that the distinction
between irregular appointment and illegal appointment is clear. It has
been held that in the event appointment is made in total disregard to
the constitutional scheme and the recruitment rules framed by the
11
(2020) 19 SCC 480
68
employer, where the employer is "State" within the meaning of Article
12 of the Constitution of India, the recruitment will be illegal one. It has,
however, been held that where although, substantial compliance with
the constitutional scheme, as also the Rules have been made, the
appointment would become irregular inasmuch as some provisions of
some rules have been adhered to.
14. This Court held in M.L. Kesari case [State of Karnataka v. M.L.
Kesari, (2010) 9 SCC 247 : (2010) 2 SCC (L&S) 826] that where the
appointments are not made or continued against sanctioned posts or
where the persons appointed do not possess the prescribed minimum
qualifications, the appointment will be considered to be illegal.
However, when the person employed possessed the prescribed
qualifications and is working against the sanctioned posts, but had
been selected without undergoing the process of open competitive
selection, such appointments are considered to be irregular."
100. The Hon'ble Supreme Court, in the case of STATE OF JAMMU AND
KASHMIR AND OTHERS vs. DISTRICT BAR ASSOCIATION,
BANDIPORA12, has made the following observations: -
"12. The third aspect of Umadevi (3) [State of Karnataka v. Umadevi (3),
(2006) 4 SCC 1 : 2006 SCC (L&S) 753] which bears notice is the
distinction between an "irregular" and "illegal" appointment. While
answering the question of whether an appointment is irregular or
illegal, the Court would have to enquire as to whether the appointment
process adopted was tainted by the vice of non-adherence to an
essential prerequisite or is liable to be faulted on account of the lack of
a fair process of recruitment. There may be varied circumstances in
which an ad hoc or temporary appointment may be made. The power of
the employer to make a temporary appointment, if the exigencies of the
situation so demand, cannot be disputed. The exercise of power
12
(2017) 3 SCC 410
69
however stands vitiated if it is found that the exercise undertaken (a)
was not in the exigencies of administration; or (b) where the procedure
adopted was violative of Articles 14 and 16 of the Constitution; and/or
(c) where the recruitment process was overridden by the vice of
nepotism, bias or mala fides. If the appointment process is not vitiated
by any of the above faults, can it be said that appointments made as an
outcome of such an exercise cannot be regularised under a scheme
framed in that regard by the employer? This is particularly when the
employer himself proceeds to frame a scheme to bring these employees
within the protective umbrella of regular service without the intervention
or command of a court direction. This is the issue to which we turn. We
propose to analyse the precedents before formulating the principles."
101. The Hon'ble Supreme Court, in the case of ASHOK KUMAR SONKAR vs.
UNION OF INDIA AND OTHERS13, has made the following observations: -
"34. .... If an appointment is irregular, the same can be regularised.
The court may not take serious note of an irregularity within the
meaning of the provisions of the Act. But if an appointment is illegal, it
is non est in the eye of the law, which renders the appointment to be a
nullity."
102. The Hon'ble Supreme Court, in the case of GOVERNMENT OF ANDHRA
PRADESH AND OTHERS vs. K. BRAHMANANDAM AND OTHERS14, has
made the following observations: -
"16. Appointments made in violation of the mandatory provisions of a
statute would be illegal and, thus, void. Illegality cannot be ratified.
Illegality cannot be regularised, only an irregularity can be."
13
(2007) 4 SCC 54
14
(2008) 5 SCC 241
70
103. The Hon'ble High Court at Bombay, in the case of VILAS AGAJI PAWAR
AND OTHERS VS. UNION OF INDIA AND OTHERS 15, has made the
following observations: -
"13. It does not call for any debate that the judgment delivered by the
Honourable Supreme Court (five Judges Bench) in Secretary, State of
Karnataka v. Umadevi, (2006) 4 SCC 1 : 2006 Mh. L.J. Online (S.C.) 36,
paved the way for regularization of long working temporaries/casuals
by introducing the principle of 'One Time Measure' (OTM). By the said
judgment, the Honourable Supreme Court concluded that such OTM
would be for those persons, who have been working regularly, though
appointed irregularly. It has been clarified that distinction between
"irregular appointments" and "illegal appointments" would be that
irregular appointments are of those category of employees, who are not
selected through a regular selection process, but are otherwise legally
eligible to be appointed. Illegal appointments would include those
persons, who may have been appointed through the regular process,
but were inherently ineligible to be appointed.
104. The Larger Bench of the Hon'ble High Court at Calcutta, in the case of
GOBINDA CHANDRA MONDAL vs. PRINCIPAL, RABINDRA
MAHAVIDYALAYA16, has made the following observations: -
"13. The above judgment has been explained by the Supreme Court in
two cases subsequently. In case of State of Karnataka v. M.L.
Kesari reported in (2010) 9 SCC 247 : AIR 2010 SC 2587 the Two
Judges' Bench in paragraph 4 of the report stated as follows:--
"In that case, a Constitution Bench of this Court held that appointments
made without following the due process or the rules relating to
appointment did not confer any right on the appointees and courts
15
2024 SCC OnLine Bom 236
16
2012 SCC OnLine Cal 10492
71
cannot direct their absorption, regularization or re-engagement nor
make their service permanent, and the High Court in exercise of
jurisdiction under Article 226 of the Constitution should not ordinarily
issue directions for absorption, regularization, or permanent
continuance unless the recruitment had been done in a regular manner,
in terms of the constitutional scheme; and that the courts must be
careful in ensuring that they do not interfere unduly with the economic
arrangement of its affairs by the State or its instrumentalities, nor lend
themselves to be instruments to facilitate the bypassing of the
constitutional and statutory mandates. This Court further held that a
temporary, contractual, casual or a daily-wage employee does not have
a legal right to be made permanent unless he had been appointed in
terms of the relevant rules or in adherence of Articles 14 and 16 of the
Constitution. This Court, however, made one exception to the above
position and the same is extracted below." (Thereafter paragraph 53 of
the report of the SCC wherein Uma Devi's case was reported has been
quoted.)
(Para 53 of Uma Devi's case)
53. One aspect needs to be clarified. There may be cases where
irregular appointments (not illegal appointments) as explained in S.V.
Narayanappa [(1967) 1 SCR 128 : AIR 1967 SC 1071] , R.N.
Nanjundappa [(1972) 1 SCC 409 : (1972) 2 SCR 799] and B.N.
Nagarajan [(1979) 4 SCC 507 : 1980 SCC (L&S) 4 : (1979) 3 SCR 937]
and referred to in para 15 above, of duly qualified persons in duly
sanctioned vacant posts might have been made and the employees
have continued to work for ten years or more but without the
intervention of orders of the courts or of tribunals. The question of
regularisation of the services of such employees may have to be
considered on merits in the light of the principles settled by this Court in
the cases above referred to and in the light of this judgment. In that
context, the Union of India, the State Governments and their
instrumentalities should take steps to regularise as a one-time measure,
72
the services of such irregularly appointed, who have worked for ten
years or more in duly sanctioned posts but not under cover of orders of
the courts or of tribunals and should further ensure that regular
recruitments are undertaken to fill those vacant sanctioned posts that
require to be filled up, in cases where temporary employees or daily
wagers are being now employed.
14. Then in paragraph 5 of the said judgment in case of M.L. Kesari the
Supreme Court has summarized the ratio of the decision in Supreme
Court in Uma Devi's case in the manner as follows:--
"It is evident from the above that there is an exception to the general
principles against 'regularization' enunciated in Uma Devi, 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.
15. Uma Devi casts a duty upon the concerned Government or
instrumentality, to take steps to regularize the services of those
irregularly appointed employees who had served for more than ten
years without the benefit or protection of any interim orders of Courts or
tribunals, as a one time measure. Umadevi, directed that such one-time
73
measure must be set in motion within six months from the date of its
decision."
16. In earlier case of the Supreme Court in case of Satya
Prakash v. State of Bihar reported in (2010) 4 SCC 179 the ratio in Uma
Devi's case has been explained in paragraph 8 which is as follows:--
"In Umadevi's case this Court held that the Courts are not expected to
issue any direction for absorption/regularization or permanent
continuance of temporary, contractual, casual, daily wage or ad hoc
employees. This Court held that such directions issued could not be
said to be inconsistent with the constitutional scheme of public
employment. This Court held that merely because a temporary
employee or a casual wage worker is continued for a time beyond the
term of his appointment, he would not be entitled to be absorbed in
regular service or made permanent, merely on the strength of such
continuance, if the original appointment was not made by following a
due process of selection as envisaged by the relevant rules. In view of
the law laid down by this Court, the directions sought for by the
appellants cannot be granted."
17. We ourselves have read the aforesaid pronouncement of the
Supreme Court while carefully reading the ratio of Uma Devi's case we
find that it is clear that two types of appointments have been discussed
one is illegal appointment and another is irregular appointment. In case
of former the appointment of such appointee cannot be accepted by
taking any measure either by regularization or absorption or making
him permanent. Illegal appointment has been described to be such
types of engagement that militates against mandatory provision relating
to recruitment meaning thereby if any person is appointed at the time of
appointment does not possess requisite qualification as regard age and
education etc. But in case of a latter namely irregular appointment
where the appointees having requisite qualification as regard age and
education, have not been appointed through open selection. In such a
case regularization can be possible granting relaxation of overage."
74
105. The Hon'ble High Court at Calcutta, in the case of SK. BARJAHAN ALI
vs. STATE OF WEST BENGAL AND ORS17., has made the following
observations: -
"6. The legal position regarding regularization of service has been
explained by the recent constitution bench of the apex court
in Secretary, State of Karnataka v. Umadevi, (2006) 4 SCC 1 : AIR 2006
SC 1806 : [2006 (3) SLR 1 (SC)]. For whatever length one may serve on
the basis of an illegal appointment, by that one does not acquire any
right to get permanent appointment to any public office. The concept of
regularization has been deprecated by the apex court. Giving
permanent appointment to an illegally appointed person has been
viewed as the back door entry in public office."
106. The Hon'ble High Court at Calcutta, in the case of SK. SAHIM VS. STATE
OF W.B. AND ORS18., has made the following observations: -
"6. .... It is known that such illegal appointment, for however long a
period one may continue in service on the basis of such appointment,
does not create any right in favour of the appointee to seek legalization
of the appointment. The initial appointment being illegal it continued to
remain illegal all through. Mere length of the illegality does not create
any sort of right to seek permanent appointment to the post."
107. In the conspectus of the aforesaid decisions comprehensively, if the
employee possessed the foundational qualifications prescribed for the post
and their initial recruitment was not a clandestine, non-competitive entry
17
2006 SCC OnLine Cal 743
18
2006 SCC OnLine Cal 724
75
but was conducted through some form of public disclosure and
evaluation, the appointment was merely irregular.
108. An irregularly appointed individual having rendered continuous,
unimpeached service for a decade or more without the protective
intervention of interim orders from Courts or Tribunals, the State is under
an equitable obligation to regularise their employment rather than use old
technicalities to justify a sudden removal.
109. When the State creates temporary positions to meet long-term
administrative needs, permits individuals to undergo a selection process,
and utilizes their services for years, it cannot later avoid its
responsibilities as an employer by labeling the recruitment process it
designed as illegal. When evaluated against this legal framework, the
induction of the petitioners cannot be classified as an illegal appointment.
The administrative record demonstrates that their entry was triggered by
a formal gubernatorial sanction under Government Order No.634-
Home(Cons.), issued with the explicit concurrence of the Finance
Department to meet the functional needs of the West Bengal State
Election Commission. The subsequent selection process involved an open
notice-board advertisement, a formal vetting of academic and technical
credentials and a competitive practical evaluation by a duly constituted
Selection Committee, which resulted in a structured merit panel. The
petitioners entered service through an open, institutional process. To
overlook this history and label their initial selection as an
76
unconstitutional back-door entry is an arbitrary reinterpretation of the
facts.
110. Furthermore, any minor procedural irregularities that may have existed at
the inception of their contractual service in 2005 were fully resolved by
the State's own subsequent statutory actions. The transition of the
petitioners to temporary status within a regular pay scale via Order
No.1046-SEC/4A-25/2004, their integration into the Revision of Pay and
Allowance (ROPA) Rules, 2009, and the establishment of their General
Provident Fund accounts were all executed with the active cooperation of
the state's central departments. This process culminated on the 5th of
February, 2010, when the competent authority issued a formal
confirmation order under the explicit operation of Rule 5 of the West
Bengal Services (Appointment, Probation and Confirmation) Rules, 1969.
111. By finalizing this confirmation, the State effectively exercised its power to
cure any initial procedural irregularities, elevating the petitioners to the
status of permanent civil servants. A formal confirmation under statutory
rules operates as a definitive legal acknowledgment that the employee's
service has been verified and accepted as regular. Once the state has
granted this permanent status, it cannot later revive minor procedural
variations from a decade earlier to justify disciplinary removal under the
guise of corrective action. To allow an administrative body to use
summary disciplinary proceedings to retroactively undo a formal statutory
confirmation will undermine the security of tenure that is essential for an
independent civil service, turning the protective framework of service
jurisprudence into an instrument of administrative instability.
77
112. The Statement of Articles of charge framed against Smt.
Moujhuri De, Data Processor, West Bengal State Election
Commission, inter alia stated as follows:-
"Annexure-I:-
Articles of Charge - I:- The Government in Home Department vide Memo
No 86-Home(Cons) dated16-02-2005 allowed to fill up the posts of data
processors on contract basis for a period of six months in view of
conducting Municipal Elections including Election to Kolkata Municipal
Corporation, after observing all requisite formalities and subject to
finalization of the Recruitment Rules for the said posts.
Thereafter a notice was published on 01-4-2005 on the office
notice board and the applications were invited vide No 436(2) -EC/4A-
25/04 dt. 01-04-2005 to fill up two posts of Data Processor on contract
basis for a period of 6 (six) months on contractual pay of Rs. 5000/-
(Rupees five thousand) only per month.
Thereafter, you were appointed as Data Processor for 6(six)
months on contract basis vide No 995-SEC/4A-25/2004 dt. 11-5-2005,
and you have joined on 16.5.2005.
Your contract period for 6(six) months expired on 15-11-2005:
Your contract period was then extended vide No 3361- SEC/4A-
25/04 dated 11-11-2005 for a further period of 6(six) months i.e. up to
15-5-2006 for which, there was no approval of Govt.
On 06-02-2006, you have applied to the Commissioner for
regularization of your service.
Your Contract period extended further for a period of 1(one) year
i.e. up to 15-7-2007 vide No 380-SEC/4A-25/04 dated 10-5-2006 for
which, again there was no approval of the Govt.
You knew that there was no instruction from the Government, still
you prayed for regularization and you were regularized by Commission
in pay scale "3350-90-3800-100-4700-125-6325 with other allowances
as admissible" vide No. 1045-SEC/4A-25/2004 dated 06-9-2006, even
no concurrence of the Government was taken.
78
Your service was confirmed by the Commission vide No. 155-
SEC/4A-4/1994(pt.-II)
For the recruitment, there was neither wide circulation in News
Papers nor your name came from employment exchange. To show
sympathy to you, Commission has shown un- sympathy to a large
number of eligible candidates waiting for a long time in a long queue
seeking employment. It is a clear violation of constitutional provision
under Article 14 and 16.
For your appointment, even 100-Point Roster for reservation for
SC/ST, etc has not been followed. As per 100 point roster, the 01"
vacancy is reserved for Scheduled Caste. You are not a member of
Schedule Caste but that vacancy was filled up appointing you.
Following the above referred Memo No 86-Home(Cons) dated16-
02-2005 of the Govt., no recruitment Rule was formed to fill up the
posts.
In Secretary, State of Karnataka-Vs- Uma Devi Case no 3595-
3612 of 1999 the Constitution Bench of the Supreme Court of India
considered different facts of the issue relating to regularization of
services of such contractual etc. employees and unequivocally ruled
that such appointees are not entitled to claim regularization of service
as of right.
As per section 7 of West Bengal State Election Commission Act,
1994, the West, Bengal State Election Commission is not competent to
appoint Data Processor on permanent basis. The Governor i.e. State
Govt. In Home Deptt. will give staff to the West Bengal State Election
Commission when so requested.
Hence, your appointment is illegal as there was no adherence to
norms of the Constitution in Article 14 & 16 and Govt. Instructions Vide
Memo No 86-Home(Cons) dated 16-02-2005 as well as violatioin of
Sec.7 of the West Bengal State Election Commission Act, 1994 and
SC/ST Reservation Policy of Govt.".
79
"Annexure-II:-The Government in Home Department vide Memo No 86-
Home(Cons) dated16-02-2005 allowed to fill up the posts of data
processors on contract basis for a period of six months in view of
conducting Municipal Elections including Election to Kolkata Municipal
Corporation, after observing all requisite formalities and subject to
finalization of the Recruitment Rules for the said posts.
Thereafter a notice was published on 01-4-2005 on the office
notice board and the applications were invited vide No 436(2)-EC/4A-
25/04 dated 01-04-2005 to fill up two posts of Data Processor on
contract basis for a period of 6 (six) months on contractual pay of Rs.
5000/- (Rupees five thousand) only per month.
Thereafter, you were appointed as Data Processor for 6(six)
months on contract basis vide No 995-SEC/4A-25/2004 dated 11-5-
2005, and you have joined on 16.05.2005.
Your contract period for 6(six) months expired on 15-11-2005.
Your contract period was then extended vide No 3361- SEC/4A-
25/04 dated 11-11-2005 for a further period of 6(six) months i.e. up to
15-5-2006 for which, there was no approval of Govt.
On 06-02-2006, you have applied to the Commissioner for
regularization of your service.
Your Contract period extended further for a period of 1(one) year
i.e. up to 15-7-2007 vide No 380-SEC/4A-25/04 dated 10-5-2006 for
which, again there was no approval of the Govt.
You knew that there was no instruction from the Government, still
you prayed for regularization and you were regularized by Commission
in pay scale "3350-90-3800-100-4700-125-6325 with other allowances
as admissible" vide No. 1045-SEC/4A-25/2004 dated 06-9-2006, even
no concurrence of the Government was taken.
For the recruitment, there was neither wide circulation in News
Papers nor your name came from employment exchange. To show
sympathy to you, Commission has shown un- sympathy to a large
number of eligible candidates waiting for a long time in a long queue
80
seeking employment. It is a clear violation of constitutional provision
under Article 14 and 16.
For your appointment, even 100-Point Roster for reservation for
SC/ST etc., has not been followed. As per 100 point roster, the 01st
vacancy is reserved for Scheduled Caste. You are not a member of
Schedule Caste but that vacancy was filled up appointing you.
Following the above referred Memo No 86-Home(Cons) dated16-
02-2005 of the Govt., no recruitment Rule was formed to fill up the
posts.
In Secretary, State of Karnataka-Vs- Uma Devi Case [2006 (4)
SCC 1], the Constitution Bench of the Supreme Court of India
considered different facts of the issue relating to regularization of
services of such contractual etc. employees and unequivocally ruled
that such appointees are not entitled to claim regularization of service
as of right.
As per section 7 of West Bengal State Election Commission Act,
1994, the West Bengal State Election Commission is not competent to
appoint Data Processor on permanent basis. The Governor i.e. State
Govt. In Home Deptt., will give staff to the West Bengal State Election
Commission when so requested.
Hence, your appointment is illegal as there was no adherence to
norms of the Constitution in Article 14 & 16 and Govt. Instructions Vide
Memo No 86-Home(Cons) dated16-02-2005 as well as violation of Sec.7
of the West Bengal State Election Commission Act, 1994 and SC/ST
Reservation Policy of Govt."
"ANNEXURE-III:- List of documents by which articles of charge framed
against Moujhuri De, Data Processor of this Commission are proposed to
be sustained.
(1) Copy of Memo No 86-Home(Cons) dated16-02-2005 of the
Government in Home Department allowing to fill up the posts of data
processors on contract basis for a period of six months.
81
(2) Copy of Notice No 436(2) -SEC/4A-25/04 dt. 01-04-2005 of this
Commission to fill up two posts of Data Processors on contract basis for
a period of 6 (six) months on contractual pay of Rs. 5000/- (Rupees five
thousand) only per month.
(3) Copy of No 995-SEC/4A-25/2004 dt. 11-5-2005 of this Commission
appointment as Data Processor for 6(six) months on contract basis.
(4) Copy of No 3361- SEC/4A-25/04 dt. 11-11-2005 of this Commission
extension of contract period for a further period of 6(six) months.
(5) Copy of your application dated 06-02-2006 to regularise your
service.
(6) Copy of No 380-SEC/4A-25/04 dt. 10-5-2006 of this Commission
further extension of contract period for 1(one) year up to 15-5-2007.
(7) Copy of No 1045-SEC/4A-25/2004 dt. 06-9-2006 of this
Commission appointment on purely temporary basis to the post of Data
Processor in pay-scale.
(8) Copy of your Joining report dt. 06-9-2006 to the post of Data
Processor.
(9) Copy of No 155-SEC/4A-4/1994 (Pt. II) dt. 05-02-2010 of this
Commission confirmation of Service.
(10) Copy Judgement of Apex Court dt. 10-04-2006 in Appeal (Civil)
case no 3595-3612 (Secretary, State of Karnataka & others VS
Umadevi & others.)
(11) Copy of provision of Article 14 & 16 of the Constitution of India.
(12) Copy of Sec.7 of West Bengal State Election Commission Act, 1994.
(13) Copy of 100 point roster".
"ANNEXURE-IV:- List of witnesses by whom the articles of charge
framed against Smt. Moujhuri De, Data Processor of this Commission
(name and designation of the Government servant) are proposed to be
sustained:
(1) NIL".
82
113. The "Annexure-P17" being no.344-SEC/1L-45/05(Pt.I) dated
15.05.2016, inter alia, stated as follows:-
"No.344-SEC/1L-45/05(Pt.I) Date: 15.04.2016
To
Smt. Maujhuri De,
Data Processor,
West Bengal State Election Commission
18, Sarajini Naidu Sarani, Kolkata - 700017.
Sub: 2nd Show Cause Notice on Departmental Proceeding.
A Departmental Proceeding was conducted against you vide West
Bengal State Election Commission's Memo No. 259-SEC/1L-45/05(Part-1)
Dated 28.03.2016 and No. 288-SEC/1L-45/05 (Part-1) dated 30.03.2016
under West Bengal Services (Classification, Control and Appeal) Rules,
1971.
2. Report of Inquiring Authority of Departmental Proceeding has been
received.
3. You were appointed as Data Processor for 6 (six) months on
11.05.2005 on contract, and after two extensions of the contract, you were
regularized on 06.09.2006. I have not questioned initial 6 months
contractual appointment, but all subsequent actions come into charge
though.
4. I have perused the report and the following charges against you are
proved:-
(i) Extension of contracts twice is not acceptable because there was no
permission of the Government, as the Government is the appropriate
authority, and not the Commission.
(ii) On 06.02.2006 she applied to the Commissioner, State Election
Commission for regularization of service, knowingly it has not got approved
of Government.
83
(iii) In Secretary, State of Karnataka -Vs.- Uma Devi case, [2006 (4) SCC
11, the Constitution Bench of the Apex Court considered different facts of
the issue relating to regularization of services of such contractual/casual/
daily rated etc. employees and unequivocally ruled that such appointees
are not entitled to claim regularization of service as of right.
(iv) Regularization by the Commission and confirment of pav scale
without even the concurrence and permission of the Government is not
acceptable as the State Government is the appropriate authority.
(v) Moreover, contractual appointment comes to an end with the end of
the contract. For selection in permanent post, fresh procedure was required
to follow by inviting applications in which a contractual employee may also
participate. In this case, direct selection of the contractual employee to the
permanent post is irregular as well as illegal as the procedure of selection
in absence of recruitment rule was not followed and equal opportunity as
per Constitutional provision of Article 14 and 16 was not given to all eligible
candidates. Thus, to show sympathy to her means showing un-sympathy
to a large number of eligible candidates waiting for a long time in a long
queue seeking employment. It is a clear violation of Article 14 and 16.
(vi) Her posting to the first post and vacancy against Scheduled Caste
roster is violation of reservation order as she is not a member of the
Scheduled Caste.
(vii) Regularisation without formation of recruitment rule for the post, as
was directed in Memo No. 86-Home (Cons.) dated 16.02.2005 of
Government, is a violation.
(viii) As per provision of Section 7 of West Bengal State Election
Commission Act, 1994, the State Government in Home Department will
provide staff to the Commission when so requested. Memo No. 632-Home
(Cons.) dated 19.06.2015 is amply clear that Government has all
prerogative in appointment of staff in this Commission.
(ix) Subsequent action after 6 months are violation. It is a series of
jumping from one stage to another and she availed such benefits.
(x) Advocacy on number of years of service is of no value because it was
done without the competent authority's approval, i.e., the Home
84
Departments approval, as well as it was done even without formation of
recruitment rule. The minimum requirement of wide circulation by
newspaper or Employment Exchange was not followed. Therefore, number
of years of service is not sufficient unless two provisions are also adhered
to.
(xi) Her claim for selection through Selection Board was only for 6
months period and that's all. To repeatedly advocate Selection Board and
Letter No. 86-Home (Cons.) dated 16.02.2005 has sanctified her
appointment, is meaningless as it was for 6 months in both case.
(xii) There is shortage of educational qualification by 6 months. In fact,
two years was required. But here it is only 1½ years.
(xiii) There was no adherence to norms of Constitution of Article dated
No. 14 and 16, Governments instruction vide Memo No. 86 16.02.2005,
Section 7 of West Bengal State Election Commission Act, 1994 and
S.C./S.T. Reservation Policy, and shortage of 6 months in the Computer
Diploma Certificate.
On perusal of all documents, the punishment proposed under cule 8(vii)
of West Bengal Services (Classification, Control and Appeal) Rules, 1971.
Rules is:- (a) Removal from service.
6. A copy of enquiry report is enclosed.
7. You are requested to reply within 22.04.2016 on the proven charges and
the quantum of punishment proposed. If no reply is received within the said
period, it will be deemed that you have nothing to say in the matter, and
the Commission will be at liberty to take decision."
114. The report of the Inquiring Authority in connection with the
charge framed vide no.259-SEC/1L-45/05 (Part-I) dated 28.03.2016
and supplementary charge vide no.288-SEC/1L-45/05 dated
30.03.2016 of the West Bengal State Election Commission against
Smt. Moujhuri De, Data Processor of this Commission, inter alia,
stated as follows:-
85
"Charge:- The Government in Home Department vide Memo No 86-
Home(Cons) dated16-02-2005 allowed to fill up the posts of data
processors on contract basis for a period of six months in view of
conducting Municipal Elections including Election to Kolkata Municipal
Corporation, after observing all requisite formalities and subject to
finalization of the Recruitment Rules for the said posts.
Thereafter a notice was published on 01-4-2005 on the office notice
board and the applications were invited vide No 436(2) -EC/4A-25/04 dt.
01-04-2005 to fill up two posts of Data Processor on contract basis for a
period of 6 (six) months on contractual pay of Rs. 5000/- (Rupees five
thousand) only per month.
Thereafter, you were appointed as Data Processor for 6(six) months on
contract basis vide No 995-SEC/4A-25/2004 dt. 11-5-2005, and you have
joined on 16.5.2005.
Your contract period for 6(six) months expired on 15-11-2005.
Your contract period was then extended vide No 3361- SEC/4A-25/04
dt. 11-11-2005 for a further period of 6(six) months i.e. up to 15-5-2006 for
which, there was no approval of Govt.
On 06-02-2006, you have applied to the Commissioner for
regularization of your service.
Your Contract period extended further for a period of 1(one) year i.e. up
to 15-7-2007 vide No 380-SEC/4A-25/04 dt. 10-5-2006 for which, again
there was no approval of the Govt.
You knew that there was no instruction from the Government, still you
prayed for regularization and you were regularized by Commission in pay
scale "3350-90-3800-100-4700-125-6325 with other allowances as
admissible" vide No. 1045-SEC/4A-25/2004 dt. 06-9-2006, even no
concurrence of the Government was taken.
Your service was confirmed by the Commission vide No. 155-SEC/4A-
4/1994 (pt.-II)
For the recruitment, there was neither wide circulation in News Papers
nor your name came from employment exchange. To show sympathy to
you, Commission has shown un- sympathy to a arge number of eligible
86
candidates waiting for a long time in a long queue seeking employment. It is
clear violation of constitutional provision under Article 14 and 16.
For your appointment, even 100-Point Roster for reservation for SC/ST,
etc., has not been followed. As per 100 point roster, the 01" vacancy is
reserved for Scheduled Caste. You are not a member of Schedule Caste but
that vacancy was filled up appointing you.
Following the above referred Memo No 86-Home(Cons) dated16-02-2005
of the Govt., no recruitment Rule was formed to fill up the posts.
In Secretary, State of Karnataka-Vs- Uma Devi Case no 3595-3612 of
1999 the Constitution Bench of the Supreme Court of India considered
different facts of the issue relating to regularization of services of such
contractual etc. employees and unequivocally ruled that such appointees
are not entitled to claim regularization of service as of right.
As per section 7 of West Bengal State Election Commission Act, 1994,
the West Bengal State Election Commission is not competent to appoint
Data Processor on permanent basis. The Governor i.e. State Govt. In Home
Deptt., will give staff to the West Bengal State Election Commission when
so requested.
Hence, your appointment is illegal as there was no adherence to norms
of the Constitution in Article 14 & 16 and Govt. Instructions Vide Memo No
86-Home(Cons) dated16-02-2005 as well as violation of Sec. 7 of the West
Bengal State Election Commission Act, 1994 and SC/ST Reservation Policy
of Govt.
Supplementary Charge:- It was envisaged in the Home Department letter
No. 86-Home(Cons.) dated 16-02-2005 and this office Notice Board Circular
No.436(2)-SEC/4A-25/04 dated 01-04-2005 that the educational
requirement for Data Processor is 2 years' Diploma Course in Computer
Application with a 1 year working experience. On perusal of your CMC
Certificate, it indicates that duration of it is for 1 year. Another Certificate
for ROLON indicates that duration was 6 months. Hence, it is short by six
months, which was required in the qualification for contractual engagement
of Data Processor. Hence, you have no requisite qualification.
87
Statement of the Charged Officer:- The charge-sheet & supplementary
charge-sheet were duly served to the charge officer and notice was duly
served to her for hearing. She appeared on 08-04-2016 at 11:00 a.m., the
date & time fixed for hearing. She submitted a written reply to the charges
and stated that she had nothing more to say. Her written replied are as
below.
Statement of the Presenting Officer:- The Presenting Office appeared at 11-
30 am, represented the case on behalf of the State action Commissioner
and stated that he has nothing to add.
Views of the Inquiring Authority:- Considered the Written replies of the
Charged Officer. Also, considered the statement of the Presenting Officer.
It is a fact that: -
a) the Government in Home Department vide Memo No 86-Home(Cons)
dated16-02-2005 allowed to fill up the posts of data processors on contract
basis for a period of six months in view of conducting Municipal Elections
including Election to Kolkata Municipal Corporation, after observing all
requisite formalities and subject to finalization of the Recruitment Rules for
the said posts; and
b) thereafter a notice was published on 01-4-2005 on the office notice board
and the applications were invited vide No 436(2) -EC/4A-25/04 dt. 01-04-
2005 of this Commission to fill up two posts of Data Processor on contract
basis for a period of 6 (six) months on contractual pay of Rs. 5000/-
(Rupees five thousand) only per month.
c) Smt. Moujhuri De was appointed as Data Processor for 6(six) months on
contract basis vide No 995-SEC/4A-25/2004 dt. 11-5-2005 of this
Commission, although She could not fulfill the criteria of computer diploma
for two years- she had diploma certificate for one and half year only i.e.
shortage of six month. She joined on 16.5.2005.
d) her contract period for 6(six) months expired on 15-11-2005.
1. a) Her contract period was then extended vide No 3361-SEC/4A-25/04
dt. 11-11-2005 of this Commission for a further period of 6(six) months i.e.
up to 15-5-2006 for which, there was no approval of Govt.
88
b) Her Claim that for extension of such contractual, no permission is
required from Govt. is not acceptable as the Govt. is the appropriate
authority in this respect and ordered for contractual engagement for six
month only.
2) a) On 06-02-2006, she applied to the Commissioner for regularization of
service.
b) In Secretary, State of Karnataka-Vs- Uma Devi Case [2006 (4) SCC 1], the
Constitution Bench of the Supreme Court of India considered different facts
of the issue relating to regularization of services of such
contractual/casual/daily rated etc. employees and unequivocally ruled that
such appointees are not entitled to claim regularization of service as of
right.
3) a) Her Contract period extended further for a period of 1(one) year i.e. up
to 15-7-2007 vide No 380-SEC/4A-25/04 dt. 10-5-2006 for which, again
there was no approval of the Govt.
b) Her Claim that for extension of such contractual, no permission is
required from Govt. is not acceptable as the Govt. is the appropriate
authority in this respect and ordered for contractual engagement for six
month only.
4) a) She was regularized by Commission in pay scale "3350-90-3800-100-
4700-125-6325 with other allowances as admissible" vide No. 1045-
SEC/4A-25/2004 dt. 06-9-2006 of this Commission, for which concurrence
of the Government was not taken.
b) Her Claim that for regularization of her service, no permission is required
from Govt. is not acceptable as the State Govt. is the appropriate authority
as per provision of Sec.7 of West Bengal State Election Commission Act,
1994 in this respect.
c) Moreover, contractual appointment comes to an end with the end of the
contract. For selection in permanent post, fresh procedure was required to
follow by inviting applications in which a contractual employee may also
participate. In this case, direct selection of the contractual employee to the
permanent post is irregular as well as illegal as the procedure of selection
89
was not followed and equal opportunity as per constitutional provision of
Art. 14 & 16 was not given to all eligible candidates.
Thus, to show sympathy to her means showing un- sympathy to a large
number of eligible candidates waiting for a long time in a long queue
seeking employment. It is a clear violation of constitutional provision under
Article 14 and 16.
5) a) As per 100 point roster, the first (1") vacancy is reserved for Scheduled
Caste
b) She claimed that the reservation relates to the post and and not against
the vacancies.
In the present case, posts and vacancy are the same.
Although Smt. Moujhuri De is not a member of Schedule Caste that post &
vacancy was filled up appointing her. This is a gross violation of SC/ST etc.
Reservation Policy of Govt.
c) a) As above referred Memo No 86-Home(Cons) dated 16-02-2005 of the
Govt., there was a clear direction that Recruitment Rule for the posts are to
be framed prior to fill to fill up the post(s) permanently.
b) In the instant case, permanent appointment was given prior to formation
of Recruitment Rule. This is a major violation of Govt. Order.
8) a) As per Section 7 of West Bengal State Election Commission Act, 1994,
the Test Bengal State Election Commission is not competent to appoint Data
Processor an permanent basis. The Governor je. State Govt. in Home Deptt.,
will give staff to the West Bengal State Election Commission when so
requested.
b) In the present case,initial contractual appointment was correct as it was
as per direction of the Govt., but the provision was not followed in
subsequent actions Le. for extension(twice) as well as permanent
appointment. This is a gross violation of Govt. order.
After six months of her appointment as contractual employee, all
subsequent actions are a series of jumping from one wrong step to another
and Smt. Moujhuri De availed herself the benefits of such wrong actions. So
she cannot deny the responsibility.
90
Her claim that for extension of contractual appointment and regularization,
no approval of Govt. is required is not acceptable at all. In this connection,
No 632 -Home(Cons.) dated 29-06-2015 of Home Deptt., may be referred to
in which there is a clear direction not to appoint any staff in this
Commission on contractual or temporary or permanent basis without
clearance from the Govt.
Her advocacy on number of years of service is of no value here because the
basic requirement of approval of appropriate authority i.e. State Govt. in the
Home Deptt. was not taken for extension of contractual appointments well
as regularization Further, for permanent appointment, norms/procedures of
wide circulation / names from employment etc. were not followed.
Therefore, number of years of service alone is not sufficient unless these
two provisions are adhered to.
Her claim for selection through Selection Board was only for contractual
appointments which ended with the expiry of six months contractual work.
As per notification No. 436(2)-SEC/4A-25/04 dated, requirement of
Computer piploma was for 2(two) years, but as per records, total duration
of her Diploma Course were for one & half years (ROLON-six month & CMC-
one year). So, there is the shortage of six month in her qualification in
Computer Diploma.
Thus, there was no adherence to norms of the Constitution in Article 14
& 16; Govt. Instructions Vide Memo No 86-Home(Cons) dated16-02-2005;
Sec. 7 of the West Bengal State Election Commission Act, 1994 and SC/ST
Reservation Policy of Govt.
Moreover, there is the shortage of six month in her qualification in
Computer Diploma.
So, the original charge as well as the supplementary charge against
Smt. Moujhury De, framed vide above noted orders of this Commission are
proved."
115. The Order being no.407-SEC/1L-45/05(pt.I) dated 28.04.2016,
inter alia stated as follows:-
91
"No.407-SEC/1L-45/05(Pt.I) Date: 28.04.2016
On scrutiny of service records it was found that Smt. Moujhuri De was
appointed on contract basis for 6 months as Data Processor on 11.05.2005
at a consolidated pay of Rs. 5000/- per month. There was an instruction
vide Home Departmet's No. 86-Home (Cons.) dated 16.02.2005 to go ahead
for appointment of 2 Data Processors for 6 months on contract basis
following requisite norms. Later on it she was regularised on 6.9.2006 after
2 extensions of contractual service without any approval or clearance of the
Government. The approval was only for contractual service for 6 months
and that's all.
2. Hence it was decided to conduct a departmental proceeding.
3. A departmental proceeding was started under West Bengal Service
(Classification, Control and Appeal) Rules, 1971 vide order No.259-SEC/1L-
45/05 (Pt.I) dated 28.03.2016 & No. 288-SEC/1L-45/05 (Pt.1) dated
30.03.2016.
4. The Inquiring Authority submitted his report vide No. 339-SEC/1L-
45/05(Pt.1) dated 13.04.2016.
5. The charge was proved by Inquiring Authority.
6. The Commission has reviewed the report of the Inquiring Officer and
agrees with that.
7. A 2nd show cause was given to her vide Memo No. 344-SEC/1L-45/05
(Pt.I) dated 15.04.2016 and the following penalty proposed was:-
(a) Removal from service.
8. Reply of 2nd show cause was sought within 22.04.2016.
9. On 20.04.2016 she sought an extension of time and she was given up to
27.04.2016. Again she wanted extension of time on 27.04.2016, it was
regretted.
Therefore, there is no reply of 2nd Show Cause.
10. On consideration all facts, the commission has decided to inflict the
following penalty:
(a) Removal from service.
11. The reasons for punishment are as below:-
92
i) Appointed as Data Processor for 6 months on 11.05.2005 on contract, as
per Home Department's instruction vide No.86-Home (Cons.) dated
16.02.2005.
ii) Extension of contracts upto 15.07.2007 twice is not acceptable because
there was no permission of the Government.
iii) On 06.02.2006 she applied to the Commissioner, State Election
Commission for regularization of service, knowingly there is no instruction
of the Government for regularisation or extension of contractual service.
iv) In Secretary, State of Karnataka -Vs.- Uma Devi case, (2006 (4) SCC 1),
the Constitution Bench of the Apex Court considered different facts of the
issue relating to regularization of services of such contractual/ casual/daily
rated etc. employees and unequivocally ruled that such appointees are not
entitled to claim regularization of service as of right.
v) Regularization by the Commission and conferment of pay scale on
06.09.2006 without even the concurrence and permission of the
Government is not acceptable.
vi) Moreover, contractual appointment comes to an end with the end of the
contract. For selection in permanent post, fresh procedure was required to
follow by inviting applications in which a contractual employee may also
participate. In this case, direct selection of the contractual employee to the
permanent post is irregular as well as illegal as the procedure of selection
was not followed and equal opportunity as per Article 14 and 16 of
Constitution was not given to all eligible candidates. Thus, to show
sympathy to her means showing un-sympathy to a large number of eligible
candidates waiting for a long time in a long queue seeking employment. It is
a clear violation of Article 14 and 16.
vii) Her posting to the first post and vacancy against Scheduled Caste
roster is violation of reservation order as she is not a member of the
Scheduled Caste.
viii) Regularisation without formation of recruitment rule for the post against
direction contained in Memo No. 86-Home (Cons.) dated 16.02.2005 of
Government, is a violation.
93
ix) As per provision of Section 7 of West Bengal State Election Commission
Act, 1994, the State Government in Home Department will provide staff to
the Commission when so requested.
x) Subsequent action after 6 months are violation. It is a series of jumping
from one stage to another and she availed such benefits.
xi) Advocacy on number of years of service is of no value because it was
done without the approval of appointing authority, i.e., the Home
Departments approval, as well as it was done even without formation of
recruitment rule. The minimum requirement of wide circulation by
newspaper or Employment Exchange was not followed. Therefore, number
of years of service is not sufficient unless these two provisions are also
adhered to.
xii) Her claim for selection through Selection Board was only for 6 months
period and that's all. Repeated utterance of Selection Board and Letter No.
86-Home (Cons.) dated 16.02.2005 that these have sanctified her
appointment, is meaningless as it was for 6 months and that's all.
xiii) There is shortage of educational qualification by 6 months. In fact, two
years was required. But here it is only 1% years.
xiv) There was no adherence to norms of Constitution of Article No. 14 and
16 i.e. bypassing Employment Exchange or News Paper publication,
Government's instruction vide Memo No. 86 dated 16.02.2005, Section 7 of
West Bengal State Election Commission Act, 1994 and S.C./S.T.
Reservation Policy, and shortage of 6 months in the Computer Diploma
Certificate.
xv) It is reiterated that there is also reservation about manner in which she
was recruited on contractual for first 6 months but Commission does not
question it. The Commission questions the benefits of regularisation etc.
after 6 months of initial contractual service.
12. By this order Smt. Moujhuri Dey is informed of this penalty.
13. This takes immediate effect."
116. Similar instances of articles of charges had been issued against Smt.
Piyali Chowdhury which are repetitive in nature situationally in
94
consonance with the above articles of charges issued against Smt.
Moujhur De and the same have not been replicated for the sake of brevity.
117. The legalities of the Disciplinary proceedings as enumerated statutorily
are replicated as follows:
The Gazette Kolkata published by Finance Department, Govt. of West
Bengal being no.2018-F.-16th April, 1971 published on April 29, 1971,
Thursday, inter alia stated as follows:-
"Part V--Discipline. 8. Penalties.--The following penalties may, for
good and sufficient reasons and as hereinafter provided, be imposed on
Government servant, namely:-- (i) censure; (ii) withholding of
increments or promotions; (iii) recovery from pay of the whole or part of
any pecuniary loss-caused to the Government by negligence or breach
of order. (iv) reduction to lower stage in the time-scale of pay for a
specified period with further direction as to whether or rot the
Government-servant will earn increments of pay during the period of
such reduction mid whether on the expiry of such period the reduction
will or will not have the effect of postponing the future increments of his
pay; (v) reduction to a lower time scale of pay grade, post or service
which shall ordinarily be a bar to the promotion of the Government.
9. Disciplinary Authorities.--Subject to the provisions of rules 10 to
13, any of the penalties specified in rule 8 may be imposed on- (i) a
member of the West Bengal State Service, Class 1 or Class II by the
Governor; and (ii) a member of the West Bengal State Service, Class III
or Class IV, by the authorities specified in corresponding entries in
column 3 of Schedule I: Provided that in a case where two or more
Government servants are concerned, the Governor or any other
authority competent to impose the penalty of dismissal from service on
all such Government servants may make an order directing that
disciplinary action against all of them may be taken in a common
proceeding. The order so made shall specify--
95
(i) the authority which may function as the disciplinary authority for thq
purpose of such common proceedings, (ii) the penalties in rule 8 which
such disciplinary authority shall be competent to impose, and (iii)
whether the procedure prescribed in rule 10 or rule 11 shall be followed
in the proceedings.
Note 1.--In all cases of fraud, embezzlement, or similar offences, the
disciplinary authority shall take steps to institute departmental
proceedings against all the delinquents and conduct them with strict
adherence to the rules up to the point at which 7 prosecution of any of
the delinquents begins. At that stage it must be specifically considered
whether further conduct of the depart-mental proceedings against any
of the remaining delinquents is practicable, and if so, it shall continue
as far as possible (which will not as a rule, include finding and
sentence). If the accused is convicted, the departmental proceedings
against him shall be resumed and formally completed either by
dismissing or removing the person from Government service or by
reducing him in rank on the ground of his conviction. If the accused is
not convicted, the departmental proceedings against him should be
dropped unless the authority competent to take disciplinary action is of
opinion that the facts of the case disclose adequate grounds for taking
departmental action against him. In either case the proceedings against
the remaining delinquents shall be resumed and completed as soon as
possible after the termination of the proceedings in court.
Explanation.--Departmental proceedings shall not as a rule be initiated
on the same charges or on charge: substantially similar to those of
which a Government servant is acquitted in consequence of or by a
decision of a court of law. There is, however, no bar to further inquiries
being undertaken in cases whore it is held by the Court that the
safeguards imposed by article 311 of the Constitution of India have not
been properly followed and a subsequent inquiry may be made on the
same charges or charges substantially similar to those on which the
penalties were originally imposed.
96
Discharge by the court or the submission of final report by the police
does not, however, amount to acquittal and there is no bar to
departmental proceedings being initiated after such discharge either on
the same charges or on charges substantially similar to those leading to
the discharge.
Note 2.--Where a Government servant (other than one to whom rule 12
or rule 13 applies) is transferred from the disciplinary control of one
officer (hereinafter in this rule referred to as the first officer) to that of
another officer (hereafter in this rule referred to as the second officer),
the first officer after such transfer, ceases to be competent to draw up
proceedings against the said Government servant although the
proposed charges relate to things done while he was under the
disciplinary control of the first officer. In such a case, the second officer
shall draw up proceeding; at first and then ask the first officer to
conduct the enquiry and submit the case to him for orders. On receipt of
the report of the enquiry the second officer may impose the penalty after
observing the procedure detailed in rule l0 or otherwise dispose of the
proceedings".
Ascertaining the ambit and constituents of misconduct is to be
definitively assessed. Therefore the following decisions are resorted to
for ascribing the meaning and effect thereto
118. In Union Of India & Ors vs J. Ahmed19, the Hon'ble Supreme Court
held as follows:-
"It would be appropriate at this stage to ascertain what generally
constitutes misconduct, especially in the context of disciplinary proceedings
entailing penalty.
19
1979 AIR 1022
97
Code of conduct as set out in the Conduct Rules clearly indicates the
conduct expected of a member of the service. It would follow that that
conduct which is blameworthy for the Government servant in the context of
Conduct Rules would be misconduct. If a servant conducts himself in a way
inconsistent with due and faithful discharge of his duty in service, it is
misconduct [see Pierce v. Foster(1)]. A disregard of an essential condition of
the contract of service may constitute misconduct [see Laws v. London
Chronicle .(Indicator Newspapers) (2)]. This view was adopted in
Shardaprasad Onkarprasad Tiwari v. Divisional Superintendent, Central
Railway, Nagpur Division, Nagpur(1), and Satubha K. Vaghela v. Moosa
Raza(2). The High Court has noted the definition of misconduct in Stroud's
Judicial Dictionary which runs as under:
"Misconduct means, misconduct arising from ill motive; acts of
negligence, errors of judgment, or innocent mistake, do not constitute
such misconduct".
In industrial jurisprudence amongst others, habitual or gross negligence
constitute misconduct but in Management, Utkal Machinery Ltd. v.
Workmen, Miss Shanti Patnaik(3), in the absence of standing orders
governing the employee's undertaking, unsatisfactory work was treated as
misconduct in the context of discharge being assailed as punitive. In S.
Govinda Menon v. Unio nof India(4), the mamnner in which a member of the
service discharged his quasi judicial function disclosing abuse of power
was treated as constituting misconduct for initiating disciplinary
proceedings. A single act of omission or error of judgment would ordinarily
not constitute misconduct though if such error or omission results in serious
or atrocious consequences the same may amount to misconduct as was
held by this Court in P. H. Kalyani v. Air France, Calcutta(5), wherein it was
found that the two mistakes committed by the employee while checking the
load-sheets and balance charts would involve possible accident to the
aircraft and possible loss of human life and, therefore, the negligence in
work in the context of serious consequences was treated as misconduct. It
is, however, difficult to believe that lack of efficiency or attainment of
98
highest standards in discharge of duty attached to public office would ipso
facto constitute misconduct. There may be negligence in performance of
duty and a lapse in performance of duty or error of judgment in evaluating
the developing situation may be negligence in discharge of duty but would
not constitute misconduct unless the consequences directly attributable to
negligence would be such as to be irreparable or the resultant damage
would be so heavy that the degree of culpability would be very high. An
error can be indicative of negligence and the degree of culpability may
indicate the grossness of the negligence. Carelessness can often be
productive of more harm than deliberate wickedness or malevolence.
Leaving aside the classic example of the sentry who sleeps at his post and
allows the enemy to slip through, there are other more familiar instances of
which a railway cabinman signals in a train on the same track where there
is a stationary train causing headlong collision; a nurse giving intravenous
injection which ought to be given intramuscular causing instantaneous
death; a pilot overlooking an instrument showing snag in engine and the
aircraft crashes causing heavy loss of life. Misplaced sympathy can be a
great evil [see Navinchandra Shakerchand shah v. Manager, Ahmedabad
Co- op. Department Stores Ltd.(1)]. But in any case, failure to attain the
highest standard of efficiency in performance of duty permitting an
inference of negligence would not constitute misconduct nor for the purpose
of Rule 3 of the Conduct Rules as would indicate lack of devotion to duty.
The High Court was of the opinion that misconduct in the context of
disciplinary proceeding means misbehaviour involving some form of guilty
mind or mens rea. We find it difficult to subscribe to this view because
gross or habitual negligence in performance of duty may no involve mens
rea but may still constitute misconduct for disciplinary proceedings."
119. In Ravi Yashwant Bhoir vs The Collector, District Raigad & Ors. 20,
the Hon'ble Supreme Court held as follows:-
20
AIR 2012 SUPREME COURT 1339
99
"... 8. Misconduct has been defined in Black's Law Dictionary, Sixth Edition
as:
"A transgression of some established and definite rule of action, a forbidden
act, a dereliction from duty, unlawful behavior, wilful in character, improper
or wrong behavior, its synonyms are misdemeanor, misdeed, misbehavior,
delinquency, impropriety, mismanagement offense, but not negligence or
carelessness."
Misconduct in office has been defined as:
"Any unlawful behavior by a public officer in relation to the duties of his
office, wilful in character. Term embraces acts which the office holder had
no right to perform, acts performed improperly, and failure to act in the face
of an affirmative duty to act."
P. Ramanatha Aiyar's Law Lexicon, Reprint Edition 1987 at page 821
defines `misconduct' thus:
"The term misconduct implies a wrongful intention, and not a mere error of
judgment. Misconduct is not necessarily the same thing as conduct
involving moral turpitude. The word misconduct is a relative term, and has
to be construed with reference to the subject matter and the context wherein
the term occurs, having regard to the scope of the Act or statute which is
being construed. Misconduct literally means wrong conduct or improper
conduct. In usual parlance, misconduct means a transgression of some
established and definite rule of action, where no discretion is left, except
what necessity may demand and carelessness, negligence and
unskilfulness are transgressions of some established, but indefinite, rule of
action, where some discretion is necessarily left to the actor. Misconduct is
a violation of definite law; carelessness or abuse of discretion under an
indefinite law. Misconduct is a forbidden act; carelessness, a forbidden
quality of an act, and is necessarily indefinite. Misconduct in office may be
100
defined as unlawful behaviour or neglect by a public officer, by which the
rights of a party have been affected."
Thus it could be seen that the word `misconduct' though not capable of
precise definition, on reflection receives its connotation from the context, the
delinquency in its performance and its effect on the discipline and the
nature of the duty. It may involve moral turpitude, it must be improper or
wrong behaviour; unlawful behaviour, wilful in character; forbidden act, a
transgression of established and definite rule of action or code of conduct
but not mere error of judgment, carelessness or negligence in performance
of the duty; the act complained of bears forbidden quality or character. Its
ambit has to be construed with reference to the subject matter and the
context wherein the term occurs, regard being had to the scope of the
statute and the public purpose it seeks to serve....".
9. Mere error of judgment resulting in doing of negligent act does not
amount to misconduct. However, in exceptional circumstances, not working
diligently may be a misconduct. An action which is detrimental to the
prestige of the institution may also amount to misconduct. Acting beyond
authority may be a misconduct. When the office bearer is expected to act
with absolute integrity and honesty in handling the work, any
misappropriation, even temporary, of the funds etc. constitutes a serious
misconduct, inviting severe punishment. (Vide:
10. In Government of A.P. v. P. Posetty, (2000) 2 SCC 220, this Court held
that since acting in derogation to the prestige of the institution/body and
placing his present position in any kind of embarrassment may amount to
misconduct, for the reason, that such conduct may ultimately lead that the
delinquent had behaved in a manner which is unbecoming of an incumbent
of the post.
11. In M.M. Malhotra v. Union of India & Ors., AIR 2006 SC 80, this Court
explained as under:
".......It has, therefore, to be noted that the word 'misconduct' is not capable
of precise definition. But at the same time though incapable of precise
101
definition, the word 'misconduct' on reflection receives its connotation from
the context, the delinquency in performance and its effect on the discipline
and the nature of the duty. The act complained of must bear a forbidden
quality or character and its ambit has to be construed with reference to the
subject-matter and the context wherein the terms occurs, having regard to
the scope of the statute and the public purpose it seeks to serve."
A similar view has been reiterated in Baldev Singh Gandhi v. State of
Punjab & Ors., AIR 2002 SC 1124.
12. Conclusions about the absence or lack of personal qualities in the
incumbent do not amount to misconduct holding the person concerned liable
for punishment.
(See: Union of India & Ors. v. J. Ahmed, AIR 1979 SC 1022).
13. It is also a settled legal proposition that misconduct must necessarily be
measured in terms of the nature of the misconduct and the court must
examine as to whether misconduct has been detrimental to the public
interest. (Vide: General Manager,
Appellate Authority, Bank of India & Anr. v. Mohd. Nizamuddin AIR 2006
SC 3290).
14. The expression `misconduct' has to be understood as a transgression of
some established and definite rule of action, a forbidden act, unlawful
behaviour, wilful in character. It may be synonymous as mis-demeanour in
propriety and mismanagement. In a particular case, negligence or
carelessness may also be a misconduct for example, when a watchman
leaves his duty and goes to watch cinema, though there may be no theft or
loss to the institution but leaving the place of duty itself amounts to
misconduct. It may be more serious in case of disciplinary forces. Further,
the expression `misconduct' has to be construed and understood in
reference to the subject matter and context wherein the term occurs taking
into consideration the scope and object of the statute which is being
construed. Misconduct is to be measured in the terms of the nature of
102
misconduct and it should be viewed with the consequences of misconduct
as to whether it has been detrimental to the public interest."
120. In Union Of India & Anr. vs Ashok Kumar Aggarwal21, the Hon'ble
Supreme Court held as follows:-
"... 8. In State of Orissa v. Bimal Kumar Mohanty, AIR 1994 SC 2296, this
Court observed as under:- "...... the order of suspension would be passed
taking into consideration the gravity of the misconduct sought to be inquired
into or investigated and the nature of evidence placed before the appointing
authority and on application of the mind by the disciplinary authority.
Appointing authority or disciplinary authority should consider ..... and
decide whether it is expedient to keep an employee under suspension
pending aforesaid action. It would not be as an administrative routine or an
automatic order to suspend an employee. It should be on consideration of
the gravity of the alleged misconduct or the nature of the allegations
imputed to the delinquent employee. The Court or the Tribunal must
consider each case on its own facts and no general law should be laid
down in that behalf......In other words, it is to refrain him to avail further
opportunity to perpetuate the alleged misconduct or to remove the
impression among the members of service that dereliction of duty will pay
fruits and the offending employee may get away even pending inquiry without
any impediment or to provide an opportunity to the delinquent officer to scuttle
the inquiry or investigation to win over the other witnesses or the delinquent
having had an opportunity in office to impede the progress of the
investigation or inquiry etc. It would be another thing if the action is
actuated by mala fide, arbitrarily or for ulterior purpose. The suspension
must be a step in aid to the ultimate result of the investigation or inquiry.
The Authority also should keep in mind public interest of the impact of the
delinquent's continuation in office while facing departmental inquiry or a
trial of a criminal charge." (Emphasis added) (See also: R.P. Kapur v. Union
21
AIRONLINE 2013 SC 479
103
of India & Anr., AIR 1964 SC 787 ; and Balvantrai Ratilal Patel v. State of
Maharashtra, AIR 1968 SC 800).
9. The power of suspension should not be exercised in an arbitrary manner
and without any reasonable ground or as vindictive misuse of power.
Suspension should be made only in a case where there is a strong prima
facie case against the delinquent employee and the allegations involving
moral turpitude, grave misconduct or indiscipline or refusal to carry out the
orders of superior authority are there, or there is a strong prima facie case
against him, if proved, would ordinarily result in reduction in rank, removal
or dismissal from service. The authority should also take into account all
the available material as to whether in a given case, it is advisable to allow
the delinquent to continue to perform his duties in the office or his retention
in office is likely to hamper or frustrate the inquiry.
10. In view of the above, the law on the issue can be summarised to the
effect that suspension order can be passed by the competent authority
considering the gravity of the alleged misconduct i.e. serious act of omission
or commission and the nature of evidence available. It cannot be actuated
by mala fide, arbitrariness, or for ulterior purpose. Effect on public interest
due to the employee's continuation in office is also a relevant and
determining factor. The facts of each case have to be taken into
consideration as no formula of universal application can be laid down in
this regard. However, suspension order should be passed only where there
is a strong prima facie case against the delinquent, and if the charges
stand proved, would ordinarily warrant imposition of major punishment i.e.
removal or dismissal from service, or reduction in rank etc.
11. In Jayrajbhai Jayantibhai Patel v. Anilbhai Nathubhai Patel & Ors.,
(2006) 8 SCC 200, this Court explained:
"18. Having regard to it all, it is manifest that the power of judicial review
may not be exercised unless the administrative decision is illogical or
suffers from procedural impropriety or it shocks the conscience of the court
in the sense that it is in defiance of logic or moral standards but no
standardised formula, universally applicable to all cases, can be evolved.
104
Each case has to be considered on its own facts, depending upon the
authority that exercises the power, the source, the nature or scope of power
and the indelible effects it generates in the operation of law or affects the
individual or society. Though judicial restraint, albeit self-recognised, is the
order of the day, yet an administrative decision or action which is based on
wholly irrelevant considerations or material; or excludes from consideration
the relevant material; or it is so absurd that no reasonable person could
have arrived at it on the given material, may be struck down. In other
words, when a court is satisfied that there is an abuse or misuse of power,
and its jurisdiction is invoked, it is incumbent on the court to intervene. It is
nevertheless, trite that the scope of judicial review is limited to the
deficiency in the decision-making process and not the decision.""
121. In Gujarat Steel Tubes Ltd vs. Gujarat Steel Tubes Mazdoor Sabha 22,
the Hon'ble Supreme Court held as follows:-
"What is decisive is the plain reason for the discharge. not the strategy of a
non-enquiry or clever avoidance of stigmatizing epithets. If the basis is not
misconduct, the order is saved. In Murugan Mills, this Court observed:
"The right of the employer to terminate the services of his workman
under a standing order, like cl. 17(a) in the present case, which accounts to
a claim "to hire and fire' an employee as the employer pleases and thus
completely negatives security of service which has been secured to
industrial employees through industrial adjudication. came up for
consideration before the Labour Appellate Tribunal in Buckingham and
Carnatic Co. Ltd. v. Workers of the Company. The matter then came up
before this before this Court also in Chartered Bank v. Chartered Bank
Employees Union(3) and the Management of U.B. Dutt & Co. v. Workmen of
U. B. Dutt & Co.(4) Wherein the view taken by Labour Appellate Tribunal
was approved and it was held that even in a case like the present the
requirements of bona fides was essential and if the termination of service
was a colourable exercise of the power or as a result of victimization or
22
1980 AIR 1896
105
unfair labour practice the industrial tribunal would have the jurisdiction to
intervene and set aside such termination. The form of the order in such a
case is not conclusive and the Tribunal can go behind the order to find the
reasons which led to the order and then consider for itself whether the
termination was a colourable exercise of the power or was a result of
victimisation or unfair labour practice. If it came to the conclusion that the
termination was a colourable exercise of the power or was a result of
victimisation or unfair labour practice. it would have the jurisdiction to
intervene and set aside such termination."
Again, in Chartered Bank v. Employees Union his Court emphasised:
" .... The form of the order of termination is not conclusive of the true
nature of the order, for it is possible that the form may be merely a
camouflage for an order of misconduct. It is, therefore, always open to the
Tribunal to go behind the form and look at the substance and if it comes to
the conclusion, for example, that though in form the order amounts to
termination simpliciter, it in reality cloaks a dismissal for misconduct, it will
be open to it to set it aside as a colourable exercise of the Power."
7. Merely because it is the reason which weighed with the employer in
effecting the termination of services would not make the order of such
termination as one founded on misconduct, for, such a proposition would
run counter to the plain meaning of clause (1) of M.S.O. 25. For an order to
be `founded' on misconduct, it must, in my opinion, be intended to have
been passed by way of punishment, that is, it must be intended to chastise
or cause pain in body or mind or harm or loss in reputation or money to the
concerned worker. If such an intention cannot be spelled out of the
prevailing circumstances, the order of discharge or the reasons for which it
was ostensibly passed, it cannot be regarded as an order of dismissal.
Such would be the case when the employer orders discharge in the
interests of the factory or of the general body of workers themselves. That
this is what was really meant by the judicial precedents which use the
word `foundation' in connection with the present controversy finds support
from a number of decisions of this Court. In The Chartered Bank, Bombay
106
v. The Chartered Bank, Employees' Union(1) this Court held that if the
termination of service is a colourable exercise of the power vested in the
management or is a result of victimization or unfair labour practice, the
Industrial Tribunal will have jurisdiction to intervene and set aside such
termination. Applying this principle to the facts of the case before it, this
Court ruled :
7. "...If the Industrial Court is satisfied that the order of discharge is
punitive, that it is mala fide, or that it amounts to victimization or unfair
labour practice, it is competent to the Industrial Court to set aside the order
and in a proper case, direct the reinstatement of the employee. In some
cases, the termination of the employee's services may appear to the
Industrial Court to be capricious or so unreasonably severe that an
inference may legitimately and reasonably be drawn that in terminating the
services, the employer was not acting bona fide. The test always has to be
whether the act of the employer is bonafide or not. If the act is mala fide, or
appears to be a colourable exercise of the powers conferred on the employer
either by the terms of the contract or by the standing orders, then
notwithstanding the form of the order, industrial adjudication would
examine the substance and would direct reinstatement in a fit case.."."
"Now one thing must be borne in mind that these are two distinct
and independent powers and as far as possible either should be construed
so as to emasculate the other cr to render it ineffective. One is the power to
punish an employee for misconduct while the other is the power to
terminate simpliciter the service of an employee without any, other adverse
consequence. Now. proviso (i) to clause (1) of Standing order 26 requires
that the reason for termination of the employment should be given in writing
to the employee when exercising the power of termination of service of the
employee under Standing order 26. Therefore, when the service of an
employee is terminated simpliciter under Standing order 26, the reason for
such termination has to be given to the employee and this provision has
been made in the Standing order with a view to ensuring that the
management does not act in an arbitrary manner. The management is
107
required to articulate the reason which operated on its mind in terminating
the service cf the employee. But merely because the reason for terminating
the service of the employee is required to be given and the reason must
obviously not be arbitrary, capricious or irrelevant-it would not necessarily
in every case make the order or termination punitive in character so as
require compliance with the requirement of clause (2) of Standing order 21
read with Standing order 23.
The recent case of Hindustan Tin Works v. Its Employees
(1) sets out the rule on reinstatement and back wages when the order of
this Court, et al, deal with this subject :
"It is no more open to debate that in the field of industrial jurisprudence
a declaration can be given that the termination of service is bad and the
workman continues to be in service. The spectre of common law doctrine
that contract of personal service cannot be specifically enforced or the
doctrine of mitigation of damages does not haunt this branch of law. The
relief of reinstatement with continuity of service can be granted where
termination of service is found to be invalid. It would mean that the
employer has taken away illegally the right to work of the workman
contrary to the relevant law or in breach of contract and simultaneously
deprived the workman of his earnings. If thus the employer is found to be in
the wrong as a result of which the workman is directed to be reinstated, the
employer could not shirk his responsibility of paying the wages which the
workmen has been deprived of by the illegal or invalid action of the
employer. Speaking realistically, where termination of service is questioned
as invalid or illegal and the workman has to go through the gamut of
litigation, his capacity to sustain himself throughout the protracted litigation
is itself such an awesome factor that he may not survive to see the day
when law's proverbial delay has become stupefying. If after such a
protracted time and energy consuming litigation during which period the
workman just sustains himself, ultimately he is to be told that though he
will be reinstated, he will be denied the back wages which would be due to
him, the workman would be subjected to a sort of penalty for no fault of his
108
and it is wholly undeserved. Ordinarily therefore, a workman whose
service has been illegally terminated would be entitled to full back wages
except to the extent he was gainfully employed during the enforced
idleness. That is the normal rule. Any other view would be a premium on
the unwarranted litigative activity of the employer. If the employer
terminates the service illegally and the termination is motivated as in this
case, viz., to resist the workmen's demand for revision of wages, the
termination may well amount to unfair labour practice. In such
circumstances reinstatement being the normal rule it should be followed
with full back wages. Articles 41 and 43 of the Constitution would assist us
in reaching a just conclusion in this respect.... In the very nature of things
there cannot be a strait-jacket formula for awarding relief of back wages.
All relevant considerations will enter the verdict. More or less, it would be a
motion addressed to the discretion of the Tribunal. Full back wages would
be the normal rule and the party objecting to it must establish the
circumstances necessitating departure. At that stage the Tribunal will
exercise its discretion keeping in view all the relevant circumstances."
This case was followed in The Tata Oil Mills Co., Ltd., v.
Workmen(2) where Gajendragadkar, C.J., who delivered the judgment of
the Court, stated the law thus :
"The true legal position about the Industrial Courts' jurisdiction and
authority in dealing with cases of this kind is no longer in doubt. It is true
that in several cases, contract of employment or provisions in Standing
Orders authorise an industrial employer to terminate the service of his
employees after giving notice for one month on paying salary for one month
in lieu of notice, and normally, an employer may, in a proper case, be
entitled to exercise the said power. But where an order of discharge passed
by an employer gives rise to an industrial dispute, the form of the order by
which the employees' services are terminated, would not be decisive;
industrial adjudication would be entitled to examine the substance of the
matter and decide whether the termination is in fact discharge simpliciter or
it amounts to dismissal which has put on the cloak of a discharge
109
simpliciter. If the Industrial Court is satisfied that the order of discharge is
punitive, that it is mala fide, or that it amounts to victimization or unfair
labour practice, it is competent to the Industrial Court to set aside the order
and in a proper case, direct the reinstatement of the employee. In some
cases, the termination of the employee's services may appear to the
Industrial Court to be capricious or so unreasonably severe that an
inference may legitimately and reasonably be drawn that in terminating the
services, the employer was not acting bona fide. The test always has to be
whether the act of the employer is bonafide or not. If the act is mala fide, or
appears to be a colourable exercise of the powers conferred on the employer
either by the terms of the contract or by the standing orders, then
notwithstanding the form of the order, industrial adjudication would
examine the substance and would direct reinstatement in a fit case."
122. The examination of the actual disciplinary proceedings initiated in the
spring of 2016, projects a failure to respect basic procedural fairness. The
exceptional speed with which the administrative machinery moved raises
serious questions under Article 14 of the Constitution, which forbids
arbitrary State Action. The primary charge-sheet was issued on the 28th of
March, 2016; a supplementary charge-sheet followed on the 30th of
March; an Inquiring Authority was appointed simultaneously; an Enquiry
Report was finalized by the 13th of April; and the final order of removal
was passed on the 28th of April, 2016. This extreme haste demonstrates a
clear disregard for the principles of natural justice (audi alteram partem).
The record shows that despite the petitioner's explicit written denials and
her reasonable requests for the production of original documents and the
opportunity to cross-examine the authors of those documents, the inquiry
proceeded without providing these basic protections. A disciplinary
inquiry that denies an employee the right to test evidence through cross-
110
examination, especially when their livelihood is at stake, is procedurally
invalid and violates the guarantee of life and personal liberty enshrined in
Article 21 of the Constitution. The summary rejection of her requests for
modest extensions of time to respond to the second show-cause notice
further confirms that the administration's primary goal was swift
termination rather than a fair assessment of the facts.
123. A closer inspection of the charge-sheets reveals an even more
fundamental jurisdictional flaw: the entire disciplinary apparatus was
weaponized in the absolute absence of any legally cognizable
"misconduct." Under established service jurisprudence, disciplinary
proceedings under the West Bengal Services (Classification, Control and
Appeal) Rules, 1971, can only be triggered by an act or omission that
constitutes a breach of discipline, a violation of a specific code of conduct,
or a failure of integrity during the performance of official duties. The
charges leveled against the petitioners in 2016 do not contain a single
allegation of contemporary professional delinquency, insubordination,
financial malfeasance, or moral turpitude during their actual tenure as
Data Processors. Instead, the charge-sheets focus exclusively on the
alleged historical insufficiency of their qualifications and experience at the
time of their recruitment in 2005. To use disciplinary rules to penalize an
employee for an administrative or procedural issue that occurred during
their recruitment over a decade prior is a profound misapplication of law.
An administrative body cannot utilize its penal disciplinary powers under
the 1971 Rules to correct what it now perceives as a historic selection
error, especially when that selection was conducted by its own duly
111
constituted panel. If the petitioners lacked the required credentials, that
issue should have been vetted and addressed during the initial selection
process or before their formal confirmation in 2010. By maintaining her
service for eleven years and issuing a formal statutory confirmation, the
authority recognized her qualification status. Initiating an aggressive
disciplinary procedure under the guise of addressing "misconduct" when
no contemporary job-related misconduct exists is an abusive exercise of
administrative power. Misconduct relates to an employee's behavior
during service; it cannot be retroactively manufactured from the
recruitment process itself after the state has formally accepted and
confirmed the appointment.
124. An error in judgment or a perceived deficiency in initial recruitment
criteria does not fall within the legal definition of misconduct. By treating
a procedural recruitment debate as an active disciplinary offence, the
Disciplinary Authority acted without jurisdiction, transforming what
should have been a protective inquiry into an arbitrary assault on an
individual's livelihood. The entire proceeding was a pretextual exercise
designed to bypass the constitutional safeguards that protect a confirmed
civil servant from summary dismissal.
125. It is also important to note the state's broader policy shift regarding
security of tenure, as expressed in its own regulatory orders. Under
Government Order No.9008-F(P) dated the 16th of September, 2011, the
State Government established that even purely contractual or casual
workers who have completed ten years of continuous service are entitled
to security of tenure and regular financial remuneration until they reach
112
the age of 60. Given this clear policy preference for stability, it is highly
inconsistent for the respondent authorities to argue that the petitioners -
who occupied a much higher legal status as formally confirmed employees
under the 1969 Rules - could be summarily cast aside. The sudden use of
an aggressive disciplinary procedure to target a validly selected and
confirmed group of employees, while leaving their initial selection
unchallenged for over a decade, constitutes an arbitrary and
disproportionate abuse of executive power.
126. Consequently, the encounters of administrative overreach manifested in
the impugned orders of removal dated the 28th of April, 2016, along with
the underlying enquiry reports and the biased charge-sheets, cannot be
sustained under constitutional law. To validate such actions would allow
administrative bodies to defeat the legitimate expectations of public
servants and undermine the security of tenure that is essential for an
independent civil service. For these reasons, the conjoined writ petitions
are allowed. The final orders of removal, the second show-cause notices,
the enquiry reports, and the primary and supplementary charge-sheets
are hereby quashed and set aside. The respondent authorities are directed
to immediately reinstate the petitioners, Smt. Piyali Chowdhury and Smt.
Moujhuri De, to their respective permanent posts of Data Processor within
the West Bengal State Election Commission, with full continuity of
service, regular seniority, and all consequential financial benefits and
back wages, to be calculated and paid within a period of eight weeks from
this date.
127.
113
128. The articles of charge framed against the petitioners adumbrate seeking of
regularization of service on expiry of initial six months of contractual
engagement and subsequent prayers on similar lines with the knowledge
that the Election Commission was devoid of exercisable statutory rules of
discharge the same and accord confirmation. An innocuous prayer of
seeking regularization cannot be stretched to any periphery of legal
precincts to constitute the ambit of 'misconduct' in view of the aforesaid
decisions cited.
129. It is figmentary and illogical, in absence of indiscipline, guilty motive,
wrongful gain, insubordination, deliberate violations of service
regulations; an employee be it a probationer, temporary or contractual
employee or a permanent employee be thrust with the nomenclature of
'misconduct' to terminate or remove from the services. The extension of
services and subsequent confirmation therein could have been denied at
the first instance rather than stigmatizing and causing financial hardship
after rendering more than a decade of continuous, flawless and
unquestionable service. The Governor's sanction and subsequent
notifications issued from the esteemed Office could not have been coerced
by the petitioners in their favour by themselves being imaginary, irrational
and frivolous proposition nor such orders and sanctions accorded by the
Governor could have been issued at the individual instance of the same
being at the helm of administrative power without the bureaucratic
discharge of procedural functionalities.
114
130. In the case of Om Prakash Goel v. Himachal Pradesh Tourism
Development Corporation Ltd., Shimla And Another, 23the Hon'ble
Supreme Court made the following observation:
"3. In Anoop Jaiswal v. Government of India (1984) 2 SCC 369, (1984) 2
SCR 453 it is held as under:
"Where the form of the order is merely a camouflage for an order of
dismissal for misconduct it is always open to the court before which the
order is challenged to go behind the form and ascertain the true character
of the order. If the court holds that the order though in the form is merely
a determination of employment is in reality a cloak for an order of
punishment, the court would not be debarred, merely because of the form
of the order, in giving effect to the rights conferred by law upon the
employees."
In Nepal Singh v. State of U.P (1985) 1 SCC 56, (1985) 2 SCR 1 it is held
as under:
"Where allegations of misconduct are levelled against a government
servant, and it is a case where the provisions of Article 311(2) of the
Constitution should be applied, it is not open to the competent authority to
take the view that holding the enquiry contemplated by that clause would
be a bother or a nuisance and that therefore it is entitled to avoid the
mandate of that provision and resort to the guise of an ex facie innocuous
termination order. The court will view with great disfavour any attempt to
circumvent the constitutional provision of Article 311(2) in a case where
that provision comes into play."
In Jarnail Singh v. State of Punjab (1986) 3 SCC 277, (1986) 1 ATC 208,
(1986) 2 SCR 1022 it is held thus:
"When an allegation is made by the employee assailing the order of
termination as one based on misconduct, though couched in innocuous
23
1991 INSC 132
115
terms, it is incumbent on the court to lift the veil and to see the real
circumstances as well as the basis and foundation of the order
complained of. In other words, the court, in such a case, will lift the veil
and will see whether the order was made on the ground of misconduct,
inefficiency, or not."
4. From the above decisions it can be seen that it is well settled that in a
case of an order of termination even that of a temporary employee the
court has to see whether the order was made on the ground of
misconduct if such a complaint was made and in that process the court
would examine the real circumstances as well as the basis and
foundation of the order complained of and if the court is satisfied that the
termination of services is not so innocuous as claimed to be and if the
circumstances further disclose that it is only a camouflage with a view to
avoid an enquiry as warranted by Article 311(2) of the Constitution, then
such a termination is liable to be quashed. In the abovementioned
decisions, the impugned termination order was accordingly quashed."
131. The Hon'ble Supreme Court, in the case of Anoop Jaiswal vs.
Government of India and others 24, has made the following observations:
-
“12. It is, therefore, now well settled that where the form of the order is
merely a camouflage for an order of dismissal for misconduct it is
always open to the court before which the order is challenged to go
behind the form and ascertain the true character of the order. If the
court holds that the order though in the form is merely a determination
of employment is in reality a cloak for an order of punishment, the court
would not be debarred, merely because of the form of the order, in
giving effect to the rights conferred by law upon the employee.”
132. The Hon’ble Supreme Court, in the case of State OfPunjab And Others
SPONSORED
vs. Balbir Singh25, has made the following observations: –
24
(1984) 2 SCC 369
25
(2004) 11 SCC 743
116“6. The test to determine whether the misconduct is “motive” or the
“foundation” of an order of discharge was laid down after exhaustively
dealing with the case-law on the topic in the case of Radhey Shyam
Gupta v. U.P. State Agro Industries Corpn. Ltd. [(1999) 2 SCC 21 : 1999
SCC (L&S) 439] as follows: (SCC pp. 35-36, paras 33-34)“33. It will be noticed from the above decisions that the termination of
the services of a temporary servant or one on probation, on the basis of
adverse entries or on the basis of an assessment that his work is not
satisfactory will not be punitive inasmuch as the above facts are merely
the motive and not the foundation. The reason why they are the motive
is that the assessment is not done with the object of finding out any
misconduct on the part of the officer, as stated by Shah, J. (as he then
was) in Ram Narayan Das case [State of Orissa v. Ram Narayan Das,
(1961) 1 SCR 606 : AIR 1961 SC 177 : (1961) 1 LLJ 552] . It is done
only with a view to decide whether he is to be retained or continued in
service. The position is not different even if a preliminary enquiry is held
because the purpose of a preliminary enquiry is to find out if there is
prima facie evidence or material to initiate a regular departmental
enquiry. It has been so decided in Champaklal
case [ChampaklalChimanlal Shah v. Union of India, AIR 1964 SC 1854
: (1964) 1 LLJ 752] . The purpose of the preliminary enquiry is not to
find out misconduct on the part of the officer and if a termination follows
without giving an opportunity, it will not be bad. Even in a case where a
regular departmental enquiry is started, a charge-memo issued, reply
obtained, and an enquiry officer is appointed — if at that point of time,
the enquiry is dropped and a simple notice of termination is passed, the
same will not be punitive because the enquiry officer has not recorded
evidence nor given any findings on the charges. That is what is held
in Sukh Raj Bahadur case [State of Punjab v. Sukh Raj Bahadur, (1968)
3 SCR 234 : AIR 1968 SC 1089 : (1970) 1 LLJ 373] and in Benjamin
case [A.G. Benjamin v. Union of India, (1967) 1 LLJ 718 (SC)] . In the
latter case, the departmental enquiry was stopped because the
employer was not sure of establishing the guilt of the employee. In all
these cases, the allegations against the employee merely raised
a cloud on his conduct and as pointed by Krishna Iyer, J. in Gujarat
Steel Tubes case [Gujarat Steel Tubes Ltd. v. Mazdoor Sabha, (1980) 2
SCC 593 : 1980 SCC (L&S) 197] the employer was entitled to say that
he would not continue an employee against whom allegations were
made the truth of which the employer was not interested to
ascertain. In fact, the employer by opting to pass a simple order of
termination as permitted by the terms of appointment or as permitted by
the rules was conferring a benefit on the employee by passing a simple
117order of termination so that the employee would not suffer from any
stigma which would attach to the rest of his career if a dismissal or
other punitive order was passed. The above are all examples where the
allegations whose truth has not been found, and were merely the
motive.
34. But in cases where the termination is preceded by an enquiry and
evidence is received and findings as to misconduct of a definitive nature
are arrived at behind the back of the officer and where on the basis of
such a report, the termination order is issued, such an order will be
violative of the principles of natural justice inasmuch as the purpose of
the enquiry is to find out the truth of the allegations with a view to
punish him and not merely to gather evidence for a future regular
departmental enquiry. In such cases, the termination is to be treated
as based or founded upon misconduct and will be punitive. These are
obviously not cases where the employer feels that there is a mere cloud
against the employee’s conduct but are cases where the employer has
virtually accepted the definitive and clear findings of the enquiry officer,
which are all arrived at behind the back of the employee — even though
such acceptance of findings is not recorded in the order of termination.
That is why the misconduct is the foundation and not merely the motive
in such cases.”
(emphasis supplied)
7. Thus the principle that in order to determine whether the misconduct
is motive or foundation of order of termination, the test to be applied is
to ask the question as to what was the “object of the enquiry”. If an
enquiry or an assessment is done with the object of finding out any
misconduct on the part of the employee and for that reason his services
are terminated, then it would be punitive in nature. On the other hand,
if such an enquiry or an assessment is aimed at determining the
suitability of an employee for a particular job, such termination would
be termination simpliciter and not punitive in nature. This principle was
laid down by Shah, J. (as he then was) as early as 1961 in the case
of State of Orissa v. Ram Narayan Das [State of Orissa v. Ram Narayan
Das, (1961) 1 SCR 606 : AIR 1961 SC 177 : (1961) 1 LLJ 552] . It was
held that one should look into “object or purpose of the enquiry” and not
merely hold the termination to be punitive merely because of an
antecedent enquiry. Whether it (order of termination) amounts to an
order of dismissal depends upon the nature of the enquiry, if any, the
proceedings taken therein and the substance of the final order passed
on such enquiry. On the facts of that case, the termination of a
probationer was upheld inasmuch as the purpose of the enquiry was
118
held to be to find out if the employee could be confirmed. The purpose of
the enquiry was not to find out if he was guilty of any misconduct,
negligence, inefficiency or other disqualification.
8. In the case of Mathew P. Thomas v. Kerala State Civil Supply Corpn.
Ltd. [(2003) 3 SCC 263 : 2003 SCC (L&S) 262] it was observed that the
façade of the termination order may be simpliciter, but the real face
behind it is to get rid of the services of a probationer on the basis of
misconduct. In such cases it becomes necessary to travel beyond the
order of termination simpliciter to find out what in reality is the
background and what weighed with the employer to terminate the
services of a probationer. In that process, it also becomes necessary to
find out whether efforts were made to find out the suitability of the
person to continue in service or he is in reality removed from the service
on the foundation of his misconduct. In this case the respondent
Corporation, in terms of clause 2 of the appointment order terminated
the services of the appellant, who was a probationer, on charges of
grave misconduct and repeated dereliction of duty tantamounting to
unsatisfactory performance. It was his duty to inspect all the
commodities received by the Corporation at the depots and to verify the
quality of goods in conformity with the specifications given by the head
office. It was alleged that he had betrayed the confidence reposed in
him as a responsible officer of the Corporation by accepting
substandard quality goods in collusion with suppliers for undue
pecuniary benefits. The termination orders were upheld by this Court.
9. In the case of Pavanendra Narayan Verma v. Sanjay Gandhi PGI of
Medical Sciences [(2002) 1 SCC 520 : 2002 SCC (L&S) 170] this Court
laid down the test to determine the nature of the termination order i.e.
whether the termination is punitive or simpliciter. The Court observed
that one of the judicially involved tests to determine whether in
substance an order of termination is punitive is to see whether prior to
the termination there was (a) a full-scale formal enquiry (b) into
allegations involving moral turpitude or misconduct which (c) culminated
in a finding of guilt. If all three factors are present the termination has
been held to be punitive irrespective of the form of the termination order.
Conversely, if any one of the three factors is missing, the termination
has to be upheld.”
119
133. The Hon’ble Supreme Court, in the case ofS.R. Tewari vs. District
Board, Agra Now TheAntarim Zila Parishad, Agra Through Its
Secretary And Another26, has made the following observations: –
“3. …..It is settled law that the form of the order under which the
employment of a servant is determined is not conclusive of the true
nature of the order. The form may be merely to camouflage an order of
dismissal for misconduct, and it is always open to the Court of before
which the order is challenged to go behind the form and ascertain the
true character of the order. If the court holds that the order of though in
the form merely of determination of employment is in reality a cloak for
an order of dismissal as a matter of punishment, the Court would not be
debarred merely because of the form of the order in giving effect to the
rights conferred by statutory rules upon the employee.”
134. The disciplinary proceedings instituted against the petitioners had
malicious and perfunctory, pejorative, detrimental and injurious to the
petitioners being exploitative both financially, physically apart from being
mentally harassive.
135. To indict two women employees without any plausible determinable
misconduct amplifies the autocratic administrative functionary dispirited,
inefficient and malevolent. The plea to “undo the wrong” had been a futile
exercise in the garb of misconduct to remove the petitioners for reasons
known best to the respondents.
136. In view of the above discussions, the instant writ petitions being WPA
22568 of 2016 and WPA 23774 of 2016 are allowed.
26
1963 SCC OnLine SC 83
120
137. Accordingly, the order of punishment of removal from service vide Memo
No.407-SEC/1L-45/05 (Pt.-1) dated 28.04.2016 is set aside. The entire
disciplinary proceeding is quashed as against Smt. Moujhuri De.
138. The order of punishment of removal from service vide Memo No.408-SEC-
1L-46/05 (Pt.-1) dated 28.04.2016 is set aside. The entire disciplinary
proceeding is quashed as against Smt. Piyali Chowdhury.
139. Both the writ petitioners viz. Smt. Moujhuri De and Smt. Piyali
Chowdhury be reinstated in their services, with formal regularization of
their services along with back wages from the date of their respective
claim along with other service benefits to be disbursed within 4 weeks
from the date of communication of this order upon the respondent
authorities.
140. Accordingly, the instant writ petitions are disposed of.
141. There is no order as to costs.
142. 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.)
