‘Above the law’: Calcutta High Court slams ‘state lawlessness’ after minister’s illegal staff appointment exposed

There is unexplained favouritism seen to have been extended to the petitioner by the state, the court said on February 17.

‘Expiry of contract is not termination of service’

• The law is settled that a contractual employee does not acquire a vested or absolute right to continue in service after the expiry of the contractual period.
• Expiry of a contract of service is not termination, but a natural end of tenure, and continuation beyond the contract period cannot be claimed as a matter of right.
• In the event of non-renewal of her contract by the competent authority, the petitioner cannot urge a violation of her legal right.
• The allegation of the petitioner that the non-renewal of her contract is arbitrary, discriminatory, and mala fide is baseless.
• It is evident that the letter dated April 5, 2010, is information for non-renewal of her contract and does not contain any imputation of allegation or charge against her.
• The legal principle relied on by the advocate for the petitioner is well settled, but the same should not be applied in a case of non-punitive termination of service. 
• Termination of service brought about by the exercise of a contractual right is not, per se, a dismissal or removal; therefore, her termination is not a dismissal under the law.
• Her termination is by way of operation of the contractual terms, and in exercise of the contractual rights of the authorities, there is no option for her to challenge the same on the ground of being in violation of her legal rights.  

‘Illegal termination’

• Advocate Dibyayan Banerji representing the petitioner, submitted that the petitioner had suffered gross illegality and lost her job and livelihood due to her alleged termination.
• The petitioner’s contact was extended every year till March 15, 2010. In this connection, Banerji referred to the note of the authority dated March 16, 2010, wherein the petitioner’s name was incorporated.
• Banerji termed the termination letter of the petitioner dated April 5, 2010, as an afterthought and a fabricated document and hence, bad in law. 
• He argued that the petitioner was allowed to work for the minister, and her verbal termination was a gross violation of the principle of law, natural justice and fairness.
• Lastly, he referred to the government memorandum dated April 23, 2010, and accordingly petitioner was eligible for re-engagement till 60 years of her age.

‘Legal rights not violated’

• Subhendu Bandopadhyay, advocate representing the Sarbha Shikkha Mission, contended that the petitioner was not able to bring on record that her legal rights were violated by the authority concerned.
• In the absence of the above, the petition was liable to be dismissed as not maintainable.
• He further argued that the petitioner’s appointment was one year extendable as per the authority’s discretion, and due to dereliction of duty, her service was not extended any further after March 15, 2010.
• He submitted that the petitioner’s appointment to the minister was overriding the objections put forth by the authority, and in compliance with the formalities for any public appointment as per law.

‘State’s Arguments’

• Arjun Roy Mukherjee, advocate representing the state, submitted that the petitioner was terminated due to non-renewal of the contract, which had no punitive implications.
• He further added that the petitioner was appointed with the secretariat of the minister at the instance of his personal capacity, and her remuneration was borne out of the contingent fund of the Sarba Sikkha Abhijan (SSA) since there was no sanctioned post under the secretariat of the said minister.   
• The letter dated April 5, 2010, was only a communication of the decision of the authority already taken, and served as a direction to hand over the documents if not already done.

‘Post of Group-C staff’

• The petitioner was selected through a process of a written test and an interview for the position of Group-C staff of Uluberia East Circle.
• The petitioner joined her post on May 2, 2007, at Uluberia East Circle and after one year, was transferred to Bally West Circle through an order issued by the District Project Officer dated November 27, 2008.
• The petitioner’s service was extendable every year, and starting from 2007 till March 2010 was extended each year.
• After March 2010, her service was not extended by the authorities, allegedly unauthorisedly and illegally.
• The petitioner prayed for redress in her written application in front of the authority, but nothing was done until she submitted the same before the minister.
• The minister, after considering her submission, allowed her to work as a departmental assistant to the minister.
• The petitioner joined her new office at Bikash Bhawan on October 5, 2010, and worked there until August 21, 2012.
• Allegedly, on August 21, 2012, her service was verbally terminated by the Officer on special duty to the minister, with retrospective effect from August 16, 2012.
• In spite of her asking, no written order of termination was served upon her; the petitioner continued to work in the said office up to October 31, 2012. 
• On November 1, 2012, a new person was appointed to the same post.
• The petitioner was solely illegally and arbitrarily removed by the authorities.

‘Improper exercise of power’

• An individual may perceive himself as above the law; nevertheless, for a civil society to function and uphold the rule of law, it must adhere to the same.
• The minister, not being the appointing authority, has unauthoritatively and illegally exercised his power and official capacity to direct for appointing the petitioner in his office.
• The minister engaging the petitioner in his office with remuneration to be disbursed from the fund meant for public good amounts to an illegal act due to improper exercise of power.
• There is unexplained favouritism seen to have been extended to the petitioner by a department of the state.
• The plea for the petitioner to be re-engaged in the post is found not to have legal and justifiable reasons.