JAITRA ACHARYA vs THE STATE OF WEST BENGAL & ORS

Rajasekhar Mantha, J

The writ petitioner claimed compassionate employment in place of his late father Mr.Milan Kumar Acharya in the West Bengal Essential

Commodities Supply Corporation Limited (Corporation). The application for compassionate employment was made by the writ petitioner’s

mother on his behalf.

The Board of Directors of the said Corporation constituted a Committee to look into the writ petitioner’s case of compassionate employment.Â

The said committee in its recommendation dated 11th March, 2004 found the petitioner eligible and appointed him as an Assistant Grade-II on a

temporary basis and on a daily wage of Rs.214/-. It was further stipulated that he would work on a ‘no work no pay’ basis.

The writ petitioner continued to work as Assistant Grade II,with the Respondent Corporation until the year 2013. In or about 2011 or 2012 the

respondent Corporation is stated to have published advertisement for recruitment of 125 persons including in various posts including that Assistant. A

further advertisement was made by the Corporation on the 21st February 2012 for recruitment to various additional posts on the 30th May, 2012. The

Respondent Corporation was stated to have also issued a notice inviting retired employees of the respondent Corporation for reappointment in various

posts including that of Assistant Grade-II.

One Tapan Rakshit another employee of the Corporation made anapplication dated 9th April, 2012 under Right to Information Act, 2005 seeking

information from the respondent. In reply to the same, the respondent furnished information vide letter dated 2nd May, 2012. It appeared from

the said reply as also a further reply dated 17th August, 2013 that about 15 persons were engaged by the Corporation on compassionate ground in the

posts of Assistant Grade-II and Helper right from September, 1995 till January, 2003. It further transpired that as many as 15 persons, who were also

engaged on compassionate ground, like the writ petitioner, were absorbed in the permanent/regular employment of the  Corporation between 1999

and 2008.

It further transpired from the said reply that the Corporation doesnot have any specific rules of its own to govern the service of its employees. A

specific question was asked by the employee aforesaid under the RTI Act 2005 as to what rules are followed to govern employees on compassionate

ground and whether it was State Government Rules or Rules made by the Board of Directors and the said Company. The clear answer was that

State Government Rules are followed by the Corporation. Based on the above facts the writ petitioner claimed permanent absorption similar to the

15 persons mentioned hereinabove.

At the time when the writ petition was taken up for admissionand thereafter the following orders were passed.

On the 10th of June, 2014 the Corporation undertook before   this Court not to take any adverse action against the writ petitioner by reason of

institution of the writ petition and that he will not be denied work.

On the 20th August, 2014 the company was asked to produce the contract of employment with the writ petitioner to show that the same had

expired and that the company was not obliged to engage the petitioner.

On the 10th of September, 2014 the respondent Corporation was directed to record on affidavit that persons similarly engaged on compassionate

grounds as the writ petitioner, were absorbed in the regular service of the Corporation.

On the 12th February, 2015 the Corporation represented before Court that the other similarly situated and absorbed persons, were so absorbed and

regularized illegally and contrary to law and that the Corporation was taking steps against such persons.

On 26th of February, 2015 the persons similarly situated who were in fact permanently absorbed in the Corporation were directed to impleded as

respondents. The Corporation was directed to file a report as regards the steps it had taken against employees illegally regularized or even

promoted. The petitioners were found to have been disengaged only in view of their having approached the Court. The Corporation was directed

to re-engage the petitioners in terms of their earlier undertaking, dated 10th June 2014.

On the 12th of March, 2015 an affidavit was filed in Court to the effect that the Board of Directors of the Corporation was taking steps to undo

the benefits given to persons similarly situated as the writ petitioner. According to the respondent, the said persons were regularized and conferred

undue benefits in the absence of any constitutional scheme to regularize such persons. A further affidavit was required to be filed by the

Corporation to indicate names of the persons of the Board of Directors who had so illegally regularized, the other 15 persons similarly situated as the

writ petitioner.

On the 2nd April, 2015 the Managing Director of the Corporation under took before Court that the writ petitioner will be offered engagement in

terms of the government order dated 16th September 2012. On the 23rd of April, 2015 the Corporation was once again directed to file affidavit in

opposition to the claim of permanent employment of the writ petitioner.

On the 17th of November 2015 the Corporation sought time to file an affidavit that the writ petitioner does not have a vested right to claim

permanent absorption. On the 15th of December, 2015 the writ petitioner sought refund of the amounts arbitrarily deducted from their monthly

salaries after their re-engagement pursuant to order of this Court. This Court had directed that the writ petitioner would have to be refunded the

sums of money illegally deducted from their regular entitlements.

The above orders have been passed by earlier Benches of thisCourt that have heard the matter as per the determination list.

This matter is taken up final adjudication.

The Counsel for the writ petitioner submits as follows:-

a) The West Bengal Essential Commodities Supply Corporation Limited does not have any specific rules independent and separate from the State to

govern employment under it. The rules of the State Government are followed by the Corporation for all intents and purposes.

b) That the writ petitioner and similarly situated 15 persons appointed by the Corporation have been engaged on compassionate ground have been so

engaged following the Rules of the State Government on Compassionate ground. The writ petitioner being similarly situated with those other 15

persons are entitled to be permanently absorbed as regular employees of the Corporation.

Per contra learned Counsel for the Corporation argues as follows:-

a) There are no specific rules for engagement on Compassionate ground in the Corporation. The writ petitioner’s engagement on the

compassionate ground was thus illegal and contrary to law and hence he cannot claim permanent absorption.

b) The other 15 persons who were engaged on Compassionate Groundsand subsequently absorbed permanently with the Corporation have not only

been illegally engaged but absorbed without any scheme for such permanent absorption. The  employment of the said 15 persons is also thus

illegal.

c) By reasons of claiming parity with the other 15 persons illegally engaged and regularized in the absence of rules, the writ petitioner is seeking

negative equality and the same is not permitted in law.

The respondents relied upon the following judgments :

Uma Devi (3) reported in 2006 (4) SCC Page 1, Manohar Lal vs.Ugrasen reported in (2010) 11 SCC 557, Jaipur Development Authority & Ors.Vs.

Vijay Kumar Data & Anr. Reported in (2011)12 SCC 94; S.P.Tewari Vs. UP Rajya Krishi Utpadan reported in 2006(7)SCC Page 684.

I have considered the rival contentions of the parties and the various judgments relied upon by the respondents.

Negative equality is a doctrine that negates claims of paritysought with persons who have gained benefit contrary to rules and law. It is well

settled that legality or impropriety once committed cannot be cited as a ground for committing further illegality. An equality sought with persons who

have availed a benefit contrary to rules and law cannot be a ground for repeating the same to other persons claiming the same undo benefit.

To attract the negative equality it must be shown that the persons with whom parity is sought have been conferred the benefit illegally and Â

contrary to law and rules. The aforesaid test in my view cannot apply to the present case. The reason therefore is that although the Corporation

does not have specific rules for compassionate employment or general condition of service for its employee, it is as a matter of practice follows and

conforms to the rules of the State Government for all intents purposes. It is also in the fitness of thing that the Corporation follows the State

Government’s rules unless specifically negated by its Articles or Memorandum of Association, or any resolution of its Board of Director. The

Corporation is admittedly wholly owned and controlled by the State Government. Respondents have not been able to demonstrate any rule, or any

part of their Articles or Memorandum of Association that debars application of a State Government’s rules in so far of its employees are

concerned.

The Board of Directors is the highest authority within the Corporation and the said Directors are appointed exclusively by the State Government. It

can also been inferred that the policy of engaging family members of the deceased employees on compassionate grounds being followed consistently

by the Board of Directors of the Corporation has evolved as a rule by custom and practice.

The responsibility of an Employer particularly the State and or its instrumentalities in this regard, has been discussed in the case of Balbir Kaur Vs

SAIL reported in (2000) 6 SCC 493. The employer being Steel Authority of India, admittedly an authority within the meaning of Article 12, has thus an

obligation to act in terms of the avowed objective of social and economic justice as enshrined in the Constitution but has the authority in the facts of

the matters under consideration acted like a model and an ideal employer â€" it is in this factual backdrop, the issue needs an answer as to whether

we have been able to obtain the benefit of constitutional philosophy of social and economic justice or not. Have the lofty ideals which the founding

fathers placed before us any effect in our daily lifeâ€"the answer cannot however but be in the negative â€" what happens to the constitutional

philosophy as is available in the Constitution itself which we ourselves have so fondly conferred on to ourselves. The socialistic pattern of society as

envisaged in the Constitution has to be attributed its full meaning. A person dies while taking the wife to a hospital and the cry of the lady for bare

subsistence would go unheeded on a certain technicality. The breadearner is no longer available and prayer for compassionate appointment would be

denied as “it is likely to open a Pandora’s box†â€" this is the resultant effect of our entry into the new millennium. Can the law courts be

mute spectators in the matter of denial of such a relief to the horrendous sufferings of an employee’s family by reason of the death of the

breadearner? It is in this context this Court’s observations in Dharwad Distt. P.W.D. Literate Daily Wage Employees Assn. v. State of

Karnataka1 seem to be rather apposite. This Court upon consideration of Randhir Singh v. Union of India 2 as also Surinder Singh v. Engineer-

inChief, CPWD3 and D.S. Nakara v. Union of India4 observed in paras 14 and 15 as below: (SCC pp. 404-05)

“14. We would like to point out that the philosophy of  this Court as evolved in the cases we have referred to above is not that of the court but

is ingrained in the Constitution as one of the basic aspects and if there was any doubt on this there is no room for that after the Preamble has been

amended and the Forty-second Amendment has declared the Republic to be a socialistic one. The judgments, therefore, do nothing more than highlight

one aspect of the constitutional philosophy and make an attempt to give the philosophy a reality of flesh and blood.

“15. Jawaharlal Nehru, the first Prime Minister of this  Republic while dreaming of elevating the lot of the common man of this country once

stated:

‘Our final aim can only be a classless society with equal economic justice and opportunity to all, a society organised on a cultural levels. Everything

that comes in the way will have to be removed gently, if possible; forcibly, if necessary, and there seems to be little doubt that coercion will often be

necessary.’

These were his prophetic words about three decades back. More than a quarter of century has run out since he left us but there has yet been no

percolation in adequate does of the benefits the constitutional philosophy stands for to the lower strata of society. Tolstoy wrote:

‘The abolition of slavery has gone on for a long time. Rome abolished slavery. America abolished it and we did but only the words were abolished,

not the thing.’

Perhaps what Tolstoy wrote about abolition of slavery in a large sense applies to what we have done to the constitutional ethos. It has still remained

on paper and is contained in the book. The benefits have not yet reached the common man. What Swami Vivekananda wrote in a different context

may perhaps help a quicker implementation of the goal to bring about the overdue changes for transforming India in a positive way and in fulfilling the

dreams of the Constitution fathers. These were the words of the Swami:

‘It is imperative that all these various yogas should be carried out in practice. Mere theories about them will not do any good. First we have to hear

about them; then we have to think about them. We have to reason the thoughts out, impress them on our minds and meditate on them; realise them,

until at last they become our whole life. No longer will religion remain a bundle of ideas or theories or an intellectual assent; it will enter into our very

self. By means of an intellectual assent, we may today subscribe to many foolish things, and change our minds altogether tomorrow. But true religion

never changes. Religion is realisation; not talk, nor doctrine, nor theories, however beautiful they may be. It is being and becoming, not hearing or

acknowledging. It is the whole soul’s becoming changed into what it believes. That is religion.’ â€​

As a matter of fact the constitutional philosophy should be allowed to become a part of every man’s life in this country and then only the

Constitution can reach everyone and the ideals of the Constitutionframers would be achieved since the people would be nearer the goal set by the

Constitutionâ€"an ideal situation but a far cry presently.â€​

Reference in this regard is also made to the case of Surya  Kant Kadam Vs. State of Karnataka reported in (2002) 9 SCC 445. In the said

case it was held that an act of compassionate employment on the basis of executive instruction albeit in the absence of a Regular Statute can be relied

upon to claim parity. The said claim was not based by negative equality. The Supreme Court stated in Paragraph 2 as follows:-

“It is true that the appointment on compassionate grounds in the State of Karnataka is not governed by any statutory rules but by a set of

administrative instructions and as such is not enforceable in a court of law. But the grounds on which the appellant makes out the case for

consideration of his case, is the violation of Article 14 and discriminatory treatment meted out to the appellant. It is undisputed that the date on

which the appellant was given compassionate appointment as Second Division Assistant/Clerk he had the necessary qualification for being appointed

as Sub-Inspector of Excise. It is also undisputed that Respondents 3 and 4 were given appointment initially as Second Division Assistant/Clerk but

later than the appellant. When the State, therefore, thought it fit to change the post of Respondents 3 and 4 and appointed them to the post of Sub-

Inspector of Excise, unless there is any justifiable reason existing, there is no reason as to why the appellant should be treated with hostile

discrimination. In the aforesaid circumstances, we set aside the impugned order of the Tribunal rejecting the prayer of the appellant for being

considered for the post of Sub-Inspector of Excise and we direct that the State Government may consider the case of appointment of the appellant as

Sub-Inspector of Excise. Be it stated, in the event he is appointed it would be prospective and he will not be entitled to any retrospective benefit.â€​

Permanent absorption of such persons must also be construed inthe light of the above and hence lawful and legal. It is only in this light that the

refusal on the part of the Corporation to take steps against or undo the benefits granted to the said similarly situated 15 employees engaged on

compassionate grounds and subsequently absorbed in regular posts in the Corporation. I therefore, hold that neither was compassionate employment

given illegally by the Corporation either to the writ petitioner or to the other 15 persons, nor was the permanent absorption of the said 15 persons,

without due process of law.

Learned Counsel for the petitioners of the writ petitioner hassubmitted that there is no financial burden on the Corporation and that there were in

existence vacancies in the Corporation. In fact, the Corporation had advertised the process of absorption in recruitment for about 200 posts, re-

employment was also proposed to be under taken of retire persons to discharge the work of the Corporation. The resolution on the part of the

Corporation therefore, to avail the services of the writ petitioner is therefore unreasonable. The writ petitioner relied upon the case of Nihal Singh Vs.

State of Punjab reported in 2013 Volume 14 Supreme Court cases page 65 paragraph 33, 35 and 36 are set out herein below:

It is no doubt that the assessment of the need to employ a certain number of people for discharging a particular responsibility of the State under

the Constitution is always with the executive government of the day subject to the overall control of the legislature. That does not mean that an

examination of the need is barred.

Therefore, it is clear that the existence of the need for creation of theposts is a relevant factor with reference to which the executive government

is required to take rational decision based on relevant consideration. In our opinion, when the facts such as the ones obtaining in the instant case

demonstrate that there is need for the creation of posts, the failure of the executive government to apply its mind and take a decision to create posts or

stop extracting work from persons such as the appellants herein for decades together itself would be arbitrary action (inaction) on the part of the State

The other factor which the State is required to keep in mindwhile creating or abolishing posts is the financial implications involved in such a

decision. The creation of posts necessarily means additional financial burden on the exchequer of the State. Depending upon the priorities of the State,

the allocation of the finances is no doubt exclusively within the domain of the legislature. However, in the instant case creation of new posts would

not create any additional financial burden to the State as the various banks at whose disposal the services of each of the appellants is made available

have agreed to bear the burden. If absorbing the appellants into the services of the State and providing benefits on a par with the police officers of

similar rank employed by the State results in further financial commitment it is always open for the State to demand the banks to meet such additional

burden. Apparently no such demand has ever been made by the State. The result is â€" the various banks which avail the services of these appellants

enjoy the supply of cheap labour over a period of decades. It is also pertinent to notice that these banks are public sector banks.

From the above it is clear that the Corporation is not in anyfinancial burden as it was about to recruit about 200 or more new employees also

requires as many hands to carry on its business. The refusal on the part of the Corporation by relying upon inapplicable legal principle therefore is

wholly arbitrary.

Let us now consider the decisions relied upon by the Corporation:The Uma Devi (3) decision (Supra) is distinguishable both on facts as well as, the

propositions laid down there under. In the said case, the Supreme Court has not dealt with initial appointments based on compassionate employment.

The Hon’ble Supreme Court was concerned with irregular and illegal appointments as also casual and temporary appointments. In the instant

case, the appointments of either writ petitioner or others similarly the situate persons is not illegal. The said decision therefore, cannot be applied in the

instant case.

The next decision cited by the respondents is the S.P. Tewari case (Supra). In the said case the initial appointment of the petitioner therein

seeking regularisation was itself illegal. No apparent illegality in the initial appointments of the writ petitioner or the other similarly situated persons has

been found in the facts of this case. The said decision therefore cannot aid the respondents.

The respondents next relied upon the Manoharlal Case (Supra) particularly paragraph 30-34 thereof. In the said case, it was held that orders

cannot be passed in proceedings that have not been prayed for. The earlier benches of this court only sought to ascertain how the alleged illegal act in

irregular appointment and absorption of the said 15 persons has been dealt with by the Corporation subsequent discovery of the alleged illegality. It

transpires that the Corporation has not deemed them as illegal appointments except for the first time in the instant proceedings and that too after a long

pendency and contradictory stands. Further, the Corporation has not chosen to take any steps against the said 15 persons or the then on the Boards of

the Directors and on the contrary has sought to defend them. The respondents also relied upon para 16 of the Jaipur Development Authority case

(Supra), in support of a submission that Article 14 of the Constitution cannot be used to repeat or validate illegal act. The said decision also has no

application in the facts of the case, as this court has found that the appointment and permanent absorption, of the other 15 persons was not illegal nor

contrary to any rule.

I, therefore, hold that the writ petitioner is liable to bepermanently absorbed in the services of the Corporation. The Corporation has a large

number of vacancies and particularly in the Grade of pay and post in which the petitioner was engaged.

W.P.No. 34979 (W) of 2013 is therefore, allowed.

There shall be no order as to costs.

Urgent xerox certified copy of this judgment, if applied for, be supplied to the parties on urgent basis.