Form No.J(2) IN THE HIGH COURT AT CALCUTTA CONSTITUTIONAL WRIT JURISDICION APPELLATE SIDE Present: The Hon’ble Justice Raja Basu Chowdhury WPA 16034 of 2017 Mitra Kumar Mondal versus The State Bank of India & Ors. For the petitioner : Mr. Kallol Basu Ms. Baisali Ghoshal Mr. Atreya Chakraborty For the respondents/ : Mr. Subrata Kumar Sinha Bank. Mr. S. Pal Choudhury Heard on : 31.01.2025 & 21.02.2025. Judgment on : 21st April, 2025 Raja Basu Chowdhury, J: 1. The instant writ petition has been filed, inter alia, for a direction upon the respondents to regularize the service of the petitioner as permanent employee of the respondent no.1 (hereinafter referred to as the Bank) in the post of messenger, the post in which the petitioner has been continuously serving for the last 22 years, till the date of filing of the writ petition. 2. The instant case proceeds on the premise that on 27th December 1982 the petitioner was engaged as a temporary messenger in Hura Branch of the State Bank of India in the district of Purulia. It is his 2 case that between 17th December 1982 to 12th April 1995 he had worked for a period of more than 607 days, with certain interval and gaps. He claims that on 27th December 1991 on the basis of an interview he was empanelled as temporary employee of the bank and the list of temporary employees was published in April, 1992. 3. He relies on an agreement executed between the bank and the registered trade union which provides for recruitment of messengers after preparation of a list of empaneled temporary staff. According to him, such agreement was first signed on 27th October 1988 and again on 9th January 1991 but the same was not renewed and consequentially the list of the temporary staff as of April 1992 lapsed after expiry on 31st March 1997, i.e. after 5 years. 4. The petitioner however claims that since, 13th April, 1995 he has been working in the bank continuously without any break and has been signing the attendance register meant for permanent staff. He was also allotted the duty in Lok Sabha Election, Assembly Election and Panchayat Election along with other permanent staffs of the bank and had also been deputed as messenger with articles to Burdwan Zonal Office, Purulia Branch Office and Stationary Department at Calcutta and had also been paid the T.A. Bills. He claims that he has been treated as a permanent staff of the bank even after the lapse of the panel on 31st March 1997. 5. According to the petitioner, certain dispute had been arisen after 10th August, 1998 when the respondent bank tried to discontinue the 3 service of the petitioner. The petitioner was compelled to move a writ petition before this Court which was registered as WP 18243 (W) of 1998. On contested hearing, the Coordinate Bench of this Court by an order dated 3rd August 2009 to inter alia ascertain whether the petitioner had been working with the bank since 24th September 1998, was pleased to frame the following questions on the basis of the issues raised in such petition. a. Whether the writ petitioner was in service when the petition was moved. b. Whether any relief as prayed for by the writ petitioner can be granted. 6. After deliberating on the aforesaid questions, the Coordinate Bench had answered the first question in affirmative. As regards the second question, the Court was of the view that if a person had been working with the bank for a number of years, then he cannot be removed without a formal order indicating the reasons. 7. An appeal was carried from such order at the instance of the bank which was registered as MAT 973 of 2009, by an order dated 18th December 2012 while observing that the order passed by the learned Single Judge does not deserve to be interfered with, the appeal was dismissed. Since then, bank did not pass any order removing him from service. 8. The present writ petition has been filed on 16th June, 2017 on the ground that although, the petitioner had been working as a messenger and has been discharging duties similar to other sub- 4 staffs of the bank, the petitioner had wrongly not been paid salary as is payable to the similarly circumstanced employees working in the bank. According to him at the time of institution of the petition, he was getting a salary of Rs. 7340/- with a basic pay of Rs. 4060/- while all other similarly circumstanced employees of the bank were receiving approximately Rs. 13000/- to 14000/- per month. Although, the petitioner had made several representations through proper channel for absorption as permanent staff but his representations were not adhered to and he continued to receive such meager pay. He has also sought for regularization of service. 9. Mr. Kallol Basu, learned senior counsel appearing in support of the writ petition and ably assisted by Mr. Chakraborty, would submit that petitioner had been working with the bank since 13th April, 1995 without any break. He would submit that the petitioner is still continuing in service. He would submit that the respondent bank has been utilizing his services as a messenger for over 30 years as of now. He would submit that his service had not been regularized though there is no adequate staff in the branch and that the bank had been utilizing his service as a regular staff though in temporary category. In support of his contention, he has placed reliance on the letter dated 19th November 1997 issued by the Manager of Hura Branch, State Bank of India, Purulia, which forms part of the supplementary affidavit. According to him, continuing the petitioner as a temporary staff on full time basis for a period of 30 years is not 5 only violative of Article 14 of the Constitution of India but is a method of exploitation. By placing reliance on a judgment delivered by Hon’ble Supreme Court in the case of Shripal & Anr. v. Nagar Nigam, Ghaziabad, reported in 2025 INSC 144, he would submit that the Hon’ble Supreme Court while considering the judgment delivered in the case of Secretary, State of Karnataka & Ors. v. Uma Devi & Ors., reported in (2006) 4 SCC 1 has been pleased to observe that Uma Devi (supra) itself distinguishes between appointments that are “illegal” and those that are “irregular”, the later being eligible for regularization if they met certain conditions. He would submit by placing reliance on the judgment of Shripal & Anr., (supra) that Uma Devi (supra) cannot be set up as a shield to justify the exploitation of the petitioner for decades together. 10. He would submit that although the petitioner had in the previous writ petition being WP 18243 (W) of 1998 sought for regularization and since though no finding was returned on the same especially in respect of the prayer for regularization, the same cannot be deemed to be barred by res judicata, since, even after the order in WP 18243 (W) of 1998 was passed on 3rd August, 2009, the petitioner has been rendering service with the bank till this date without any break in service. He would submit that since, the petitioner is performing the work which is comparable to the work of subordinate staff, the petitioner is entitled to equal pay for equal work. In support of his aforesaid contention, he has placed reliance on the judgment 6 delivered in the case of State of Punjab & Ors. v. Jagjit Singh & Ors., reported in (2017) 1 SCC 148. In support of his aforesaid contention that the parity of pay cannot be denied to temporary employees performing similar works of regular employees, he has also placed reliance on the judgment delivered by the Coordinate Bench of this Court in the case of Smt. Dipali Dutta (Guha) v. West Bengal State Co-operative Marketing Federation Ltd. & Ors., reported in 2018 SCC OnLine Cal 64. In the facts noted herein, he humbly prays that the writ petition may be allowed and relief prayed for be granted to the petitioner. 11. Per contra, Mr. Sinha, learned advocate representing the bank would submit that though the petitioner’s name was empanelled in the panel of temporary employee, such panel had lapsed on 31st March 1997, as such the engagement of all empanelled employees across the country by reason of a binding effect of an industrial settlement had automatically come to an end on 31st March 1997, which included the petitioner. He would submit that the aforesaid contention of the bank, however, was not accepted by the Coordinate Bench of this Court in WP 18243 (W) of 1998 which while disposing of the petition by order dated 3rd August 2009 had directed the bank not to interfere with the service of the petitioner except in accordance with law. According to him, the settlement made on 30th July 1996 between the bank and the SBI Staff Federation has a binding force which provided that all messenger posts in the subordinate cadre 7 including the post of part-time attendants shall be filed up by keeping the panel of temporary employees alive till 31st March 1997 for filling up vacancies existed/arising as on 31st December 1994. Admittedly, since, there was no vacancy, the petitioner was not regularized and the panel lapsed. It is for such reason the petitioner was ultimately not regularized in service even after the order was passed by the Coordinate Bench on 3rd August 2009. Since the bank did not succeed in the intra-court appeal, the petitioner has been permitted to continue in service. He would submit that having regard to the judgment delivered in the case of Uma Devi (supra), the petitioner cannot be made permanent/ regularised on the expiry of his term of appointment. According to him, the petitioner cannot be equated with the permanent employees. The petitioner is being paid an ad hoc remuneration. There is no order of engagement. The petitioner’s engagement is not in accordance with law after following any competitive examination. Mere continued employment cannot give rise to a right to claim permanency or parity of pay of a regular employee. In support of his contentions, reliance is placed on the judgment delivered in the case of Union of India & Ors. v. Ilmo Devi & Anr., reported in (2021) 20 SCC 290. He also submitted that the petitioner had previously prayed for regularization and the Court having not acceded to his prayer, the prayer for regularization is deemed to have been declined. No relief can be afforded to the petitioner. 8 12. Heard the learned advocates appearing for the respective parties and considered the materials on record. On the basis of admitted facts, it would transpire that the bank from time to time engaged casual worker on ad hoc basis in the subordinate cadre, in its branches as per its requirement. The bank had also entered into agreements/settlements from time to time concerning the absorption of such persons in the manner laid down in the respective agreements depending on the eligibility criteria provided therein and more particularly detailed in the settlements dated 17th October 1988 and 9th January 1991. A panel of eligible temporary employees working in subordinate cadre was prepared, for considering them for permanent employment in the bank against the vacancies arising upto December 1994. Admittedly, the petitioner’s name was entered in such list as the petitioner had been engaged as a temporary employee. The settlement dated 30th July 1996 provided that the panel shall be kept alive upto March 1997 for filling up the existing vacancies or vacancies arising as on 31st December 1994. There is no dispute that though the petitioner was empaneled for absorption he was ultimately not absorbed, and the list lapsed on expiry of period in terms of the aforesaid agreement. Although, the respondents claim that on the expiry of the above period, the service of the petitioner would automatically stand terminated, however, from the order dated 3rd August 2009 passed by the Coordinate Bench of this Court in WP 18243 (W) of 9 1998, it would transpire that the petitioner was in service of the bank even after expiry of the aforesaid settlement, especially on 24th September 1998 when an interim order was passed in such petition. Even thereafter, there was no embargo on the bank to terminate the services of the petitioner, as the final order in such writ petition dated 3rd August 2009 only directed the bank not to interfere with the services of the petitioner without a formal order indicating some reasons. Admittedly, the bank did not pass any order removing the petitioner from service. 13. The petitioner has already reached the age of superannuation. Notwithstanding the aforesaid, the bank continues to employ the petitioner. It is true that the prayer of regularization in WP 18243 (W) of 1998 was not allowed and since no finding was rendered in respect of the prayers (c) and (d) in the above petition, it is evident that the same may be hit by mischief of Explanation V of Section 11 of the Code of Civil Procedure. However, as rightly pointed by Mr. Basu, the cause of action for the two writ petitions, one filed in the year 2009 and the other filed in the year 2017 are distinct and different. In the instant petition, the petitioner, inter alia, seeks regularization of his service as a permanent employee in the post of messenger/sub-staff on account of the petitioner having continuously serving the bank even after the order dated 3rd August 2009 was passed. It is well settled that if cause of action is distinct, principles of res judicata shall not apply. There is no dispute that 10 the petitioner has been serving the bank even after 3rd August 2009. Although, Mr. Sinha has attempted to hold out that the bank has been compelled to continue with the employment of the petitioner in the light of the order dated 3rd August 2009 so as to term the same as litigious employment, I am of the view that there is nothing in the order dated 3rd August 2009 so as to prevent the bank from discontinuing the service of the petitioner by passing an order of removal from service. The Court only observed that since the petitioner is working with the bank, he cannot be removed without a formal order indicating some reasons. No formal order was ever passed removing the petitioner from the bank. Having regard thereto, it cannot be said that the employment of the petitioner was a litigious one. It is, however, an admitted position that despite the petitioner having reached the ordinary age of superannuation, the bank continues to obtain the services of the petitioner. 14. It is not in dispute that the petitioner despite discharging full time functions in the bank as a messenger which is identical to a subordinate staff of the bank in subordinate cadre, is only being paid a fixed remuneration which is extremely low in comparison with the salary paid to the other subordinate staffs of the bank. It must be noted that the Hon’ble Supreme Court in the case of Uma Devi (supra) distinguished between the concept of equal pay for equal work and conferment of permanency to those who have been appointed on ad hoc basis. The Court observed that the concept of 11 equality is enshrined in our Constitution in the light of the Directive Principles of State Policy. Again, in a recent judgment delivered in the case of Shripal & Anr., (supra), the Hon’ble Supreme Court has once again highlighted that the judgment delivered in the case of Uma Devi (supra) itself distinguishes between appointments which are illegal and those that are irregular, held that the later being found eligible for regularization if met with certain conditions. It is in that context the Hon’ble Supreme Court has observed, that the case of Uma Devi (supra), cannot act as a shield to justify the exploitive engagement persisting for years without the employer undertaking the legitimate recruitment. Admittedly, in this case the manner in which the petitioner has been exploited and continues to be exploited even beyond the age of superannuation needs no further mention. In the light of the fact that the respondents continued with the employment of the petitioner from 3rd August 2009, and has not passed any order directing his removal, speaks volumes of the exploitative attitude of the Bank, in paying the petitioner a fraction of the money and other benefits which is normally paid to a sub staff of the bank in permanent employment. As noted above, the employment of the petitioner in the bank is not a back door entry, rather on the basis of collective bargaining a settlement was reached and pursuant thereto, the petitioner having succeeded in the interview, the petitioner was empaneled and his empanelment was kept alive for the regularization since, the 12 petitioner met the eligibility criteria. However, before the petitioner could be regularized, the life of the panel lapsed. In fact, both these issues, one with regard to the initial entry of the petitioner in service and the other with regard to the nature of his employment (whether or not full time) had been conclusively decided by the Hon’ble Appeal Court in its order dated 18th December 2012, wherein in paragraph 10 it was observed as follows: “10. We are aware of such limitations, but in the instant case, we are satisfied that the judgements referred to above cannot apply. Firstly, we have noticed that the writ petitioner entered into service in 1991 not on the basis of any procedure that can be said to be improper but on the basis of an interview, in which he faced well and as a result, his name was published in the list of temporary employees. Subsequently in 1997, the Senior Chief manager of the Bank, wrote to the Assistant General Manager (quoted above) stating that the petitioner was being utilized as a general carder Messenger on full-time basis without any break and that his monthly salary and allowances were being paid through the establishment w.e.f. April, 1995……………….” 15. Although, Mr. Sinha has attempted to make out a case that the service of the petitioner was discontinued on the panel having lapsed, in my view such plea is no longer sustainable having regard to the observations made in the order dated 3rd August 2009 which categorically and in no uncertain terms held that the petitioner was in service at the time of filing the writ petition being WP 18243 (W) of 1998. In so far as the judgment delivered in the case Ilmo Devi 13 (supra) is concerned the same also cannot assist the respondents as in the said case regularizing or extending the benefit of granting minimum basic pay of group D posts to the part time employees was found to be unsustainable as the concerned employees were found working for only 4-5 hours a day and thus, could not claim parity of pay or regularization. Such is not the case here. It is not the case of the respondents that the petitioner has been working on part time basis, rather he was utilized on full time basis. 16. Admittedly, the bank did not undertake legitimate recruitment for filling of the post of sub staff which the petitioner is discharging. The petitioner continues to discharge his duties with the bank for the last 30 years. The petitioner spent his entire life serving the bank and continues to do so till this day. Although, Mr. Sinha has attempted to argue that the petitioner had continued in the services by keeping his eyes wide open, I am of the view that the petitioner had little or no choice considering the socio-economic scenario prevalent in the state where unemployment is a curse and opting out of employment on the ground of its temporary nature would have amounted to ringing the death knell for him. The Bank thus, having taken advantage of the superior bargaining position, successfully exploited the petitioner for his entire service tenure and continues to do so even after the petitioner has reached the ordinary age of superannuation. No benefit of any nature apart from fixed salary has been paid, though the petitioner has discharged the 14 duties as are ordinarily assigned to a permanent sub-staff of the bank; there is no dispute in this regard, at least nothing has been placed to contradict the same. 17. Considering the peculiar facts of this case, I am of the view that since the petitioner has already reached the ordinary age of superannuation, denying the petitioner the benefits as are available to a permanent sub staff of the Bank would only encourage the Bank to continue to exploit the petitioner and obtain his services beyond the age of superannuation by making payment of a token amount. This is a classic example where the bank has been exploiting a temporary employee under the shield of the judgment delivered in the case of Uma Devi (supra) though the same draws a distinction between the illegal appointment and irregular appointment. The above appointment for reasons noted above cannot be said to be an illegal one. Considering the settlements dated 27th October 1988, 9th January 1991, 30th July 1996 and 31st March 1997 which are enforceable in the court of law, in my view, inducting the petitioner after an interview on empanelment roll though as a temporary employee cannot be said to be de hors of the recruitment process as the parties had by way of collective bargaining agreed that the employees who are on the panel would be regularized. It is a different issue that the petitioner could not be regularized and the panel lapsed. The same does not make the initial induction of the petitioner bad or illegal or de hors the 15 recruitment policy of the Bank. In any event the aforesaid issue has already been conclusively decided between the parties as noted above. 18. Noteworthy is the fact that the Bank did not discontinue the petitioner even after the cut-off date in terms of the settlements dated 30th July 1996 and 31st March 1997, or after the order dated 3rd August 2009, on the contrary has continued with his service even after his ordinary age of superannuation and is attempting to shield the exploitation of the petitioner by denying him benefits of the regular employment by relying on the judgment in the case of Uma Devi (supra). No attempt has been made to fill up such post by regular recruitment process. It is well settled that none should be permitted to take advantage of his own wrong. The wrong committed by the Bank on the petitioner is glaring and apparent. Propriety demands that appropriate orders are passed, especially noting the attitude of the Bank in continuing with his services by making payment of paltry amount of rupees seven thousand and odd, as opposed to the payments made to the regular employees discharging identical services, even after the petitioner’s ordinary superannuation age. The exploitation continues till this day as according to the respondents, in absence of the petitioner being a regular employee, there is no fixed age of superannuation. As such according to the respondents there is no irregularity in continuing 16 with the services of the petitioner even after the ordinary age of superannuation. 19. In the peculiar facts noted above, I propose to and do hereby pass the following orders. The respondents are directed to notionally refix the pay of the petitioner by treating him as a regular sub-staff of the bank by including all perks, benefits and allowances as are available and attached to a regular sub-staff, at the minimum pay scale payable to a sub-staff on his continuation of service after 3rd August 2009 on 4th August 2009 by treating the same as the deemed date of entry in regular employment. Upon such refixation, which must be done in accordance with the settlements as applicable to the regular employees, and upon disbursement of actual refixed salary and benefits including dearness allowance for the month of April 2025, to notify the petitioner of his superannuation, by appropriate notice in accordance with law. All retiral benefits including, gratuity, provident fund and pension be calculated and disbursed on the basis of his refixed last drawn pay by treating him to be in permanent employment till actual superannuation. However, prior to issuance of superannuation notice, all formalities for regularizing the provident fund account of the petitioner must be completed. It is expected that the aforesaid shall be completed within a period of three months from the date of communication of this order. The 17 above order has been necessitated to stop further exploitation of the petitioner. 20. There shall be no order as to costs. 21. Urgent Photostat certified copy of this order, if applied for, be given to the parties upon compliance with the requisite formalities. (Raja Basu Chowdhury, J.)