Minister Appointing Contractual Employee In Secretariat Without Sanctioned Post Is 'Lawlessness', Misuse Of Funds: Calcutta High Court

The Calcutta High Court has held that a purely contractual employee cannot claim continuation or renewal of service as a matter of right after expiry of the contractual term, and that a Minister cannot bypass statutory procedure to appoint an individual in the secretariat without a sanctioned post or recruitment process. Observing that such backdoor engagement amounts to misuse of public office and funds, the Court dismissed a writ petition seeking reinstatement.Justice Rai Chattopadhyay was dealing with a plea filed by a former Group-C staff member under the Sarba Shiksha Mission who challenged the non-renewal of her annual contractual appointment and her subsequent removal from duties in the Education Minister's secretariat. The petitioner had been appointed in 2007 through a written test and interview on a yearly contractual basis, with extensions granted till March 2010. Thereafter, following a show-cause notice alleging dereliction of duty, the authorities decided not to renew her contract. A communication was issued informing that her service would not continue beyond the contractual period.Contending that the action was arbitrary and violative of natural justice, the petitioner argued that the non-renewal amounted to illegal termination and that no inquiry or hearing was conducted. She further submitted that, on approaching the Minister-in-Charge, she was permitted to work as a departmental assistant in the Minister's secretariat and continued there for nearly two years with salary, and therefore should be treated as continuing in service. She also relied on a government memorandum to claim entitlement to re-engagement.The Court, however, rejected these submissions and held that the petitioner's appointment was purely contractual and contingent upon yearly renewal at the discretion of the authorities. It clarified that expiry of a fixed-term contract is not “termination” in the legal sense but merely the natural end of tenure. In such circumstances, a contractual employee does not acquire any vested or indefeasible right to continue in service, and non-renewal does not require a disciplinary inquiry or adherence to principles of natural justice unless it is punitive or stigmatic. The communication issued by the authorities was found to be a simple intimation of non-renewal and not a punitive order.Coming down heavily on the petitioner's later engagement in the Minister's office, the Court described the development as “dramatic” and contrary to law. It noted that there was no sanctioned post, no selection procedure and that remuneration was paid from public or project funds meant for educational purposes. The Minister was not the appointing authority and had no power to make such an appointment. The Court observed that allowing appointments in this manner would undermine the rule of law and amount to improper exercise of official power. It held that an engagement made dehors legal and procedural compliance cannot create any enforceable right or be treated as continuation of earlier service.Finding no legal infirmity in the decision not to renew the contract and holding the secretariat appointment itself to be illegal, the Court dismissed the writ petition. It further remarked that the State may, if it deems fit, initiate appropriate proceedings to examine the misuse of public funds and fix responsibility.Case: Tithi Adhikary v. State of West Bengal & Ors.Case No.: WPA 3022 of 2013Click here to read order

Minister Appointing Contractual Employee In Secretariat Without Sanctioned Post Is 'Lawlessness', Misuse Of Funds: Calcutta High Court

Srinjoy Das

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