TMI Blog1992 (8) TMI 298X X X X Extracts X X X X X X X X Extracts X X X X ..... on ad hoc basis i.e., without reference to Public Service Commission or the Subordinate Services Selection Board and without adhering to employment exchange requirements. They were initially appointed for a period of six months or so but were continued for years together under orders passed from time to time. (In so far as the State of Haryana is concerned, most of the class III posts in the Education Department were kept out of the purview of the S.S.S.B. during the period 1970 to 1987. For a period of 10 years, it is stated, there was no Board in existence in the State. Only in March 1987, almost all the posts in Education Department and other Departments were brought within the purview of the S.S. S.B.). As a result of the above policy, a large number of ad hoc employees came into existence in both the States, who were continuing over several years without being regularised and were agitating for their regularisation. To meet the situation, both the Governments issued orders from time to time for regularisation of such employees subject to certain conditions. The orders issued by the Government of Punjab are the following: The orders issued by the Government of Haryana are th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e placed junior to those working on regular basis. These are the conditions common to all the orders issued from time to time by the Governments of Punjab and Haryana. Only those ad hoc/temporary employees who could not be regularised for want of satisfying one or the other of the conditions prescribed in the respective orders that had approached the High Court by way of Writ Petitions. They contended that the conditions prescribed in the said orders were arbitrary, discriminatory and unrelated to the object. It is this contention which was examined at some length and accepted by the High Court. 4. Besides the ad hoc/temporary employees, certain other categories of persons also approached the High Court whose cases too have been dealt with in the judgment under appeal. They are work charged employees, daily-wagers, casual labour and those employed in temporary/time-bound projects. They too wanted to be regularised. A plea of equal pay for equal work was also advanced by certain petitioners. These pleas too were considered and upheld. 5. The reasons for which the High Court held the conditions prescribed in the orders of regularisation aforementioned, as bad are to the foll ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... trary. 6. Having expressed the opinions above-mentioned, the High Court referred to certain decisions of this Court and of its own, and expressed the view that continuing employees on ad hoc basis for more than one year without regularising them is arbitrary and unreasonable. This principle was also held applicable to other categories of employees like daily wagers, casual labour and others, who were workmen as defined in the Industrial Disputes Act. The court further opined that inasmuch as the State of Haryana was prescribing one year's service for regularisation (in its orders) the Punjab Government cannot prescribe two years qualifying service. Thus, one year service was declared as the norm for all such employees to become entitled to regularisation. 7. The directions ultimately granted by the High Court while allowing the batch of writ petitions are to the following effect: (1) The State Government should avoid making any ad hoc appointments. If they do so, it shall be for initial period of six months and not be extended beyond other six months. If their term is extended beyond one year, to such employees the benefits arising from our following conclusions wil ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r those schemes. On regularisation they would be entitled to all service benefits from the date of initial appointments. As regards work charged employees, who have completed five years of service, they shall be considered to be regular employees under the scheme of regularisation framed by the State of Punjab and order for their regularisation shall be passed. As regards work charged employees of the State of Haryana, on completion of four years of service they shall be considered to be regular under the regularisation scheme framed by the State and appropriate orders for their regularisation shall be passed. However, they would be entitled to all service benefits from the date of initial appointments. (4) The persons falling in group (III) are those who come within the definition of 'workman' under the 1947 Act. On completion of 240 days, which shall be counted keeping in view the decision of the Supreme Court in the Workmen of American Express International Bank Corporation v. The Management of American Express (1985)IILLJ539SC , they would be entitled to benefits of all the provisions of Chapter V-a of the 1947 Act, and their services should not be dispensed with ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ders are passed, the employees shall continue and their services shall not be terminated. 8. The States of Punjab and Haryana are questioning the validity and correctness of the above directions in these appeals. Some employees have also directly approached this Court by way of writ petitions contending that they too are governed by the directions given by the High Court and should be given the benefit of the same. The respondents in these appeals and such writ petitioners are supporting the judgment and directions aforesaid. Mr. Sibal, learned Counsel for the appellants questioned the validity and correctness of the directions given by the High Court on the following grounds: (1) That the High Court has exceeded its jurisdiction in virtually amending the Government orders on the subject of regularisation. The learned Judges were not justified in holding that the fixation of a particular date in the respective G.Os. was arbitrary and/or that it was unrelated to the object. The learned Judges have also erred in holding that the requirement of having been sponsored by the Employment Exchange was invalid. (2) The learned Judges were not justified in law in directing that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... roblem created by the policies of the Governments themselves. It is submitted by Shri R.K. Garg that the work-charged employees should be treated on par with ad hoc employees and ought to be regularised on the 1st of April of each year. All those persons who are working in the permanent posts ought to be regularised, says the counsel. Sri M.K. Ramamurthy, appearing for the work charged employees contended that the general concept as to work charge employees, viz., that the employment is confined to a particular work or project is not correct. He submitted that this is a legacy left behind by the British. He submitted that the work charge employees are employees of the work charge establishment and so long as one or the other work is there, they should be continued. Inasmuch as the Government, particularly at the present stage of development, is never without a project or work, these employees must also be regularised. Indeed, according to the counsel the concept of work charge establishment is a mere matter of accountancy. It is distinct from project employment. It is really temporary employment which in the nature of things must be treated as regular. Other counsel appearing for t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nded that the very fact that they are continued over such a long period is itself proof of the fact that there is regular need for such employment. In that view of the matter, following directions were given, after reviewing the earlier decisions of this Court elaborately From amongst the casual and daily rated employees who have completed ten years of service by December 31, 1989, 18,600 shall immediately be regularised with effect from January 1, 1990, on the basis of seniority-cum-suitability. There shall be no examination but physical infirmity shall mainly be the test of suitability. The remaining monthly rated employees covered by the paragraph 1 who have completed ten years of service as on December 31, 1989 shall be regularised before December 31, 1990, in a phased manner on the basis of seniority-cum-suitability, suitability being understood in the same way as above. The balance of casual or daily rated employees who become entitled to absorption on the basis of completing ten years of service shall be absorbed/regularised in a phased manner before December 31, 1997. At the point of regularisation, credit shall be given for every unit of five years of service i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o were in the employment of PHED before the Constitution of the Authority and were transferred to the Authority, (ii) those whom the Authority employed between 1st April, 1984 and 4th August, 1986, (iii) those who were appointed between 4th August, 1986 and 30th July, 1988, and (iv) those who were appointed after 30th July, 1988. Rule 9 of the Kerala State and Subordinate Services Rules empowered the Government to appoint persons, in the case of an emergency, otherwise than in accordance with the Rules. Such appointment was to be valid only for a limited time and such appointee was bound to be replaced by a regular appointee. At the same time, Clause (e) of the Rule provided that persons so appointed may be regularised provided they completed two years continuous service on 22.12.1973. Construing the said clause in the light of the constitutional philosophy, this Court held: therefore, if we interpret Rule 9(a)(i) consistently with the spirit and philosophy of the Constitution, which it is permissible to do without doing violence to the said rule, it follows that employees who are serving on the establishment for long spells and have the requisite qualifications for the job, sho ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... workers whose services have been terminated in violation of this Court's order in respect of which Contempt Petition No. 156 of 1990 is taken out shall be entitled to the benefit of this order as if they continue in service and the case of each worker will be governed by the clause applicable to him depending on the category to which he belongs and if he is found eligible for regularisation he will be restored to service and assigned his proper place. 12. As would be evident from the observations made and directions given in the above two cases, the court must, while giving such directions, act with due care and caution. It must first ascertain the relevant facts, and must be cognizant of the several situations and eventualities that may arise on account of such directions. A practical and pragmatic view has to be taken, inasmuch as every such direction not only tells upon the public exchequer but also has the effect of increasing the cadre strength of a particular service, class or category. Now, take the directions given in the judgment under appeal. Apart from the fact the High Court was not right - as we shall presently demonstrate in holding that the several conditions ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing and violating the rule relating to reservation in favour of backward class of citizens made under Article 16(4). What cannot be done directly cannot be allowed to be done in such indirect manner. (e) Many appointments may have been made irregularly - as in this case - in the sense that the candidates were neither sponsored by the Employment Exchange nor were they appointed after issuing a proper advertisement calling for applications. In short, it may be a back door entry. A direction to regularise such appointments would only result in encouragement to such unhealthy practices. These are but a few problems that may arise, if such directions become the norm. There may be many such and other problems that may arise. All this only emphasises the need for a fuller consideration and due circumspection while giving such directions. 13. Now we shall proceed to examine whether the High Court was right in holding that the several conditions prescribed in the orders issued by the two Governments from time to time are bad. In particular, whether the High Court was right in holding that prescribing a particular date by which the prescribed period of service should have been put ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rers as were appointed as such on or before the 25th day of June 1975 and are continuing as such at the commencement of the Rajasthan Universities Teachers : (Absorption or Temporary Lecturers) Ordinance, 1978 (Ordinance No. 5 of 1978) shall be considered by the University concerned for their absorption and substantive appointment on the recommendation of the Screening Committee constituted under Section 4 subject to their fulfilling the conditions of eligibility including minimum qualifications prescribed by the University concerned under the relevant law as applicable on the respective dates of their temporary appointments and subject also the availability of substantive vacancies of lecturers in the department concerned. The validity of the said Ordinance was questioned on the ground that the fixation of the date, 25th day of June, 1975, was arbitrary and has been chosen only because that was the date on which internal emergency was proclaimed. It was also submitted that the further requirement that the lecturer appointed should be continuing as such on the date of commencement of the Ordinance (12.6.1978) is an equally arbitrary and unreasonable condition. Both these content ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d in holding that inasmuch as Haryana and Punjab are sister States and because prior to 1966 Haryana was a part of Punjab, the rule relating to length of service requisite for regularisation should be uniform in both the States. We see absolutely no basis for the said holding. They are two different States having their own Governments, merely because one Government chooses to say that one year's temporary or ad hoc service is enough for regularisation it cannot be said that the other State must also prescribe the very same period or that it cannot prescribe a longer or shorter period. The fact that there is a single High Court for both the States and the Union Territory of Chandigarh is no ground for saying that the orders issued by them should be uniform. 16. The learned Judges have further directed that in so far as the State of Haryana is concerned class III and IV posts which were within the purview of the S.S.S.B. shall equally be within the purview of regularisation orders issued by it. The learned Judges have pointed out that for a period of 10 years there was no such Board functioning and further that from the year 1970 to 1987 most of the class III and IV posts wit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... chanical act but a judicious one. Judged from this stand point, the impugned directions must be held to be totally untenable and unsustainable. 18. So far as the members of the work-charged establishment are concerned, the nature of their employment is already pronounced upon by this Court in Jaswant Singh v. Union of India 1980(1) S.C.R. 426. It is stated therein: A work-charged establishment broadly means an establishment of which the expenses, including the wages and allowances of the staff, are chargeable to works . The pay and allowances of employees who are borne on a work-charged establishment are generally shown as a separate sub-head of the estimated cost of the work. The entire strength of labour employed for the purposes of the Beas Project was work-charged. The work-charged employees are engaged on a temporary basis and their appointments are made for the execution of a specific work. From the very nature of their employment, their services automatically come to an end on the completion of the works for the sole purpose of which they are employed. They do not get any relief under the Payment of Gratuity Act nor do they receive any retrenchment benefits or any ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and who fall within the definition of workmen are concerned, the terms in which the direction has been given by the High Court cannot be sustained. While we agree that persons belonging to these categories continuing over a number of years have a right to claim regularisation and the authorities are under an obligation to consider their case for regularisation in a fair manner, keeping in view the principles enunciated by this Court, the blanket direction given cannot be sustained. We need not, however, pursue this discussion in view of the orders of the Government of Haryana contained in the letter dated 6.4.1990 which provide for regularisation of these persons on completion of ten years. We shall presently notice the contents of the said letter. In view of the same, no further directions are called for at this stage. The Government of Punjab, of course, does not appear to have issued any such orders governing these categories. Accordingly, there shall be a direction to the Government of Punjab to verify the vacancy position in the categories of daily wagers and casual labour and frame a scheme of absorption in a fair and just manner providing for regularisation of these persons, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the counsel for the State of Haryana to frame a scheme for absorption) the Government of Haryana did frame such a scheme contained in the Chief Secretary's letter dated 6.4.1990 addressed to all the Heads of Department. It covers the ad hoc employees, work charged employees, casual workers/daily rated employees, workmen, ad hoc/temporary employees in temporary organisation as also seasonal workers. It is but appropriate that we set out the said letter in full: No. 6/4/90-2GSI From The Chief Secretary to Govt, Haryana To 1. All Head of Departments, Commissioner Ambala, Hisar, Rohtak and Gurgaon Divisions and all the Deputy Commissions in the State. 2. The Registrar, Punjab and Haryana High Court, Chandigarh. Dated Chandigarh, the Subject: Policy regarding regularisation of ad hoc/work-charged employees and casual/daily wagers etc. Sir, I am directed to refer to the subject noted above and to state that the matter regarding laying down the policy with regard to regularization of the services of Class-III ad hoc employees, work-charged/daily wagers etc. has been under consideration of Govt. for some time past. After careful consideration, it has be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ployees, who have completed 4 or more years of continuous service as on 30.9.88 shall be regularized. On regularization, these employees shall be liable for transfer anywhere in the State of Haryana on any project/work. Category-III. Casual Workers' Daily rated employees. With regard to these employees, the following policy will be followed: i) Casual/daily rated employees appointed on or before 30.9.1983 shall be treated as monthly rated established employees on a fixed pay of ₹ 750/- (minimum of Class-IV pay scale) or the rates as fixed by the Deputy Commission concerned p.m. without any allowance w.e.f. 1.10.88. They shall be entitled to an annual increment of ₹ 12/ - till their services are regularized. On regularization, they shall be put in the time scale of pay applicable to the lowest Group 'D' in the Govt. and they would be entitled to all other allowances and benefits available to regular Govt. servants of the corresponding grade. ii) The casual or daily rated employees, who have completed 10 years or more of service on 30.9.88 shall be regularized w.e.f. 1.10.88 on the basis of seniority-cum-suitability. iii) In respect of all such daily ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Subordinate Services Selection Board, Haryana and their services shall be regularised if they fulfil the following conditions, namely: (i) that the employees have completed two years service on 31st December, 1990, and were in service on 31st December, 1990; (ii) that the employees shall be regularised against the posts/vacancies of relevant categories. The employees of general category may be regularised in excess of their quota with the clear stipulation that in future recruitments only the candidates from reserve categories will be appointed until the back long arising out of utilisation of reserve category vacancies by general category ad hoc employees is cleared; (iii) that the employees should have been recruited through the Employment Exchange or directly appointed by the appointing authority after obtaining the non-availability certificate from the Employment Exchange; (iv) that the work and conduct of such employees shall be of over all good category and no disciplinary proceedings are pending against them, and (v) that the employees possessed the prescribed qualifications for the post at the time of their appointment on ad hoc basis. 2. The seni ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... age at the time of their first/ad hoc/temporary appointment in accordance with the Departmental service rules and instructions issued by the government. iii) that their record of service is satisfactory. iv) that they have been found medically fit for entry into Government service and that their character and antecedents have also been duly verified and found suitable for Government service; v) that a regular post/vacancy is available for regularisation; vi) that they have been found fit for regularisation by the Departmental Selection Committees constituted in accordance with the instructions contained in Government circular letter NO. 12/30/86/IGE/5139 dated 15.4.86; vii) The seniority of the ad hoc/temporarily appointed class-III employees so regularised vis-a-vis class-III employees appointed on regular basis shall be determined w.e.f. 31.12.90. The interse seniority of such ad hoc/temporarily appointed class-III employees shall be determined in accordance with the date of their joining the post on ad hoc/temporary basis. If the date of joining the post(s) on ad hoc/temporary basis by such ad hoc/temporarily appointed employees was the same then an older employee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Singh. Leave is granted in all such matters as well and the appeals allowed in the same terms as the appeals against the judgment in Piara Singh. 25. Before parting with this case, we think it appropriate to say a few words concerning the issue of regularisation of ad hoc/temporary employees in government service. The normal rule, of course, is regular recruitment through the prescribed agency but exigencies of administration may sometimes call for an ad hoc or temporary appointment to be made. In such a situation, effort should always be to replace such an ad hoc/temporary employee by a regularly selected employee as early as possible. Such a temporary employee may also compete along with others for such regular selection/appointment. If he gets selected, well and good, but if he does not, he must give way to the regularly selected candidate. The appointment of the regularly selected candidate cannot be withheld or kept in abeyance for the sake of such an ad hoc/temporary employee. Secondly, an ad hoc or temporary employee should not be replaced by another ad hoc or temporary employee; he must be replaced only by a regularly selected employee. This is necessary to avoid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... this behalf, we do commend the orders of the Government of Haryana (contained in its letter dated 6.4.90 referred to hereinbefore) both in relation to work-charged employees as well as casual labour. We must also say that the orders issued by the Governments of Punjab and Haryana providing for regularisation of ad hoc/temporary employees who have put in two years/one year of service are quite generous and leave no room for any legitimate grievance by any one. These are but a few observations which we thought it necessary to make, impelled by the facts of this case, and the spate of litigation by such employees. They are not exhaustive nor can they be understood as immutable. Each Government or authority has to devise its own criteria or principles for regularisation having regard to all the relevant circumstances, but while doing so, it should bear in mind the observations made herein. 26. So far as the employees and workmen employed by Statutory/Public Corporations are concerned, it may be noted that they have not issued any orders akin to those issued by the Punjab and Haryana Governments. Even so, it is but appropriate that they adopt as far as possible, keeping the exi ..... 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