High Court Slams Kolkata Municipal Corporation For Engaging Contractual Employees To Permanent Posts, Restrains Their Termination As One Time Measure

The Calcutta High Court has pulled up the Kolkata Municipal Corporation (“KMC”) for its practice of engaging contractual workers to carry out the tasks of permanent employees against the settled position of law in various rules of recruitment, as well as precedents laid down by the Supreme Court from time to time.

A division Bench of Justice Arijit Banerjee and Justice Apurba Sinha Ray partly allowed an appeal preferred by such contractual workers, seeking regularisation of appointment due to apprehension of losing their contractual jobs, after a decade of service.

The Court, in an exceptional finding, which it did not want to become a precedent, held that while an order for regularisation of service could not be passed due to the dictum of the Supreme Court on this issue, the petitioners would be protected from losing their jobs till their age of superannuation. It held:

“It is true that the in view of the present law of the land, we cannot direct KMC to regularize the services of the appellants but the inhumane attitude of the KMC should be deprecated. They have appointed temporary workers on contractual basis...there is no reason for not extending the social security schemes to the appellants who are performing their duties satisfactorily at a lesser pay…the prayer for regularization of the services of the appellants cannot be allowed at this stage. However, we direct that the present services of the appellants on contractual basis cannot be terminated till they reach the age of 60 years respectively without formulating some reasonable social security scheme for their benefit…We also make it clear that this judgment should not be treated as a precedent.”

Brief facts of the case:

The appeal arose against an order of a Single-judge who refused the appellants' prayer of regularisation of service, holding that their appointment was improper and, in any case, only as contractual workers, which could not be made permanent.

Appellants were engaged as Lab technicians under the KMC, having being appointed through a walk-in interview process, and had been working since the year 2010 as contractual employees for a period of 6 months at a time, with their tenure being extended periodically for the last 10 years.

It was contended by the appellants, that the KMC, through a notification in 2020 had notified the date and process for selection examinations of a new set of lab technicians, and thus apprehending losing their jobs, the appellants initially approached the Court seeking for their employment to be regularised and for the 2020 notification to be stayed. They submitted that they were engaged only has contractual workers, and could never seek permanency of employment since the Municipal authorities "taking advantage of their dominant position as employer" imposed upon them the condition of not making any claim for regularization.

It was contended by the KMC that the appellants were indeed engaged as Lab technicians, but this was only on the basis of a walk-in interview and only as a temporary engagement. It submitted that KMC Act, 1980 does not provide for regularisation of contractual workers, and that a walk-in interview cannot be equated to a proper recruitment process. For this, KMC relied on the Supreme Court case of Seceratary, State of Karnatka v Umadevi & ors.

Observations of the Court:

Perplexed by the submissions of the KMC, since their actions of appointing the appellants as contractual workers, in 2010, itself went against the ratio in Umadevi (supra), which directed that only regular recruitment should take place against vacant government posts from 2006, the Bench remarked:

“...the appellants were called upon to attend walk-in-interview in the year 2010…the question is when the Hon’ble Supreme Court by its decision in Uma Devi (supra) delivered in 2006, has clearly directed the State Governments and its instrumentalities that they should ensure that regular recruitments are undertaken to fill up vacant sanctioned posts where temporary employees are being employed…could KMC bypass such direction in the year 2010?"

It said KMC cannot per permitted blow hot and cold at the same time. “Kolkata Municipal Authority without paying any heed to such direction [of the Supreme Cour] appointed the appellants as contractual workers. But when the question of regularization arises, the Kolkata Municipal Corporation has taken shelter behind the [same] case law of Uma Devi (supra) and has denied regularization of such engagement of the appellants.”

Court said petitioners' apprehensions were not baseless and that KMC's conduct is not acceptable. "...they have compelled the appellants to perform perennial jobs which are supposed to be done by the regular employees with higher pay scale. The approach of the KMC is inhumane and cannot be endorsed in a welfare State…in my view if the Kolkata Municipal Corporation does not follow its own Recruitment Rules and also the direction of the Hon’ble Supreme Court, we cannot make the appellants scapegoat for the wrongful acts of the Corporation…It is expected that a Court of law should not allow the KMC, a model employer, to become an unscrupulous employer…”

Coram: Justice Arijit Banerjee and Justice Apurba Sinha Ray

Case: Kausik Ghosh & Ors. Vs. The State of West Bengal & Ors.

Citation: 2023 LiveLaw (Cal) 169

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