Achyut Ch. Pathak and Others vs State of Assam and Others

Brijesh Kumar, C.J.—This bunch of appeals arises out of the judgment and order dated 23.9.98, passed by the learned Single Judge disposing of a number of Civil Rules No. 4411 of 1995 and others, by above noted common judgment, since the points involved for consideration were common to all the petitions. The Appellants are aggrieved by a part of the order of the learned Single Judge, which relates to the question of regularisation of services of the employees working on contingent/daily wages/muster roll/work charge basis, having been appointed after 1.4.1993. In all the appeals same questions are involved; hence they have been bunched together and they are being disposed of by this common judgment.

We have heard Shri A.K. Phukan, Shri N. Dutta, Shri K.N. Choudhury, Shri R. Gogoi, Shri B.K. Sharma, Dr. H. Das, Shri B.P. Kataky, Shri M.K. Choudhury, Shri D.R. Gogoi, and Shri D.S. Bhattacharyya, learned Counsel appearing for the Appellants in the respective appeals, as well as Shri B.C. Das, learned Addl. Sr. Govt. Advocate, Assam appearing for the Respondents.

In all the petitions filed by the employees they are working on contingent/daily wages/work charge/muster roll basis continuously for long periods, the Petitioners had prayed for their regularisation in the services. Such employees were engaged by different Departments of the Government, namely, Public Works Department (PWD), Irrigation Department, Forest Department, Public Health Engineering Department (PHE Dept.), etc. Learned Single Judge has gone into the merit of the matter in some detail, more particularly, in reference to the provisions as contained in the Assam Public Works Department code, relating to engagement on contingent/work charge/daily wage basis. In the other departments, it has been found that no such code or regulatory provisions are available. However, there was no denial of the fact that in all these Departments thousands of employees had been appointed and have been working since long durations. It has also been found that in the PW Department, persons in excess of requirement had been engaged by the officers concerned at their level. Learned Single Judge has found, and rightly, that mere fact of long continuance by itself would not be sufficient to regularise the services of an employee unless posts duly sanctioned exist and are available for their being filled up on regular basis. The Petitioners, as found, had been engaged for performing work on non-regular basis according to the exigency and the need of the moment for doing the work till the completion of a particular project or to meet any other requirement of temporary nature.

So far the position as it stands under the law relating to ad-hoc or contingent engagements and regularisation of such employees is concerned, it is clear that regularisation in service of such employees may not be possible in absence of posts duly sanctioned being available, against which one can be regularised. Learned Counsel for the State has referred to certain decisions of Hon''ble Supreme Court on the above proposition, as reported in State of U.P. and Others Vs. Ajay Kumar, The court observed thus in para 3 of the judgment as follows:

The admitted position is that the Respondent came to be appointed on daily-wage basis on 14.2.1985 as class IV employee. Nursing Orderly in the Medical College by the Medical Superintendent. When the Respondent filed a writ petition in the High Court for his regularisation, the learned Single Judge pointed out that the Respondent has not brought to the notice of the Court, any statutory rule under which the Respondent could be regularised, on the basis of the service rendered by him as a daily-wage earner. Even the method of recruitment adopted by the Superintendent was not proper inasmuch as he did not call for applications. The Division Bench reversed the decision of the learned Single Judge and had given directions. It is now settled legal position that there should exist a post and either administrative instructions or statutory rules must be in operation to appoint a person to the post. Daily-wage appointment will obiviously be in relation to contingent establishment in which there cannot exist any post and it continues so long as the work exists. Under these circumstances, the Division Bench was clearly in error in directing the Appellant to regularise the service of the Respondent to the post as and when the vacancy arises and to continue him until then. The direction in the backdrop of the above facts is, obviously, illegal.

In Union of India (UOI) Vs. Uma Maheswari and Others, the Hon''ble Supreme Court held that in absence of any scheme having been framed by the Government for regularisation of casual workers or any other provision under the law, it would not be possible to issue any direction for regularisation of such employees as no regular work would be available for the posts for which a claim was advanced by the Petitioners. It was further held that if some scheme has been framed, as was given out, the state would consider the cases of all eligible persons entitled for regularisation under the scheme.

In yet another decision reported in Ashwani Kumar and Others Vs. State of Bihar and Others, . it has been held that where the appointments have been made in excess of sanctioned posts such appointments were bad. It was further held that there could not be any regularisation unless posts exist against which such regularisation could be made. It was held that where the entry into the service was against the procedure and there was no existing vacancy with any backing of budgetary provision, it would be totally unauthorised and would give no right to the incumbent for being regularised.

In view of the law laid down by the Hon''ble Supreme Court through various decisions, as indicated above, it is difficult to be persuaded that the Appellants would be entitled for regularisation in service in absence of any posts duly sanctioned under any scheme or in the strength of the Department in which they have been working.

So far the matter in hand is concerned, the Petitioners had been categorised in two categories-one consisting of those who were appointed prior to 1.4.1993, and the other, appointed thereafter. In respect of appointees prior to 1.4.1993, the State Government itself formulated a scheme for their regularisation in a phased manner. It was indicated before the learned Single Judge that the Government was accordingly taking steps in pursuance of the said scheme. The learned Single Judge also accordingly directed for acting upon the scheme as provided by the Government. Obviously, there is no grievance in respect of such employees.

In these appeals, the grievance is in respect of the persons appointed after 1.4.1993. Learned Counsel for the Appellants have first of all submitted that the fixation of cut off date as 1.4.1993 is arbitrary and unreal. Hence, the barrier of date must be struck down as discriminatory. It is submitted that all those persons engaged on account of temporary needs on daily wages/contingent/work charge or muster roll basis, they constitute one class and on the ground of long duration for which they worked, all should be entitled for regularisation without any distinction regarding date of their appointment. The argument though seems to be attractive, but it is devoid of any merit. Needless to emphasise that classification is permissible within the legal framework. If persons fall in two different categories, they can legally be treated on different footing. In the present case, the State Government, it appears, had taken a decision in the year 1983 itself for regularising the services of muster roll and work charge employees in the PW Department on their completion of 15 years and 5 years of service, respectively. But, since rampant appointments were made irrespective of the need, there was excess staff; but at the same time there was pressure for regularisation of their services. In these circumstances, the State Government took up the matter and hold parleys with the unions of the employees of the PW Department and as a result of mutual talks held, a cut off date was fixed as 1.4.1993, deciding to regularise the services of appointees prior to the aforesaid date. The decision was taken in the meeting held on 9.4.1993. At that time a decision also seems to have been taken that no further recruitment of such workers in any Department was to be made. It also seems to have been decided that whenever work charge employees are needed, they will be shifted from one project to the other. As discussed in paragraph 11 of the judgment of the learned Single Judge, the decision was circulated by letter dated 16.4.93 (Annexure-B/2). A list of such employees was also called for by the Finance Commissioner. The said decision saying that no further recruitment was to be made, was again circulated vide Office Memorandum No. BW 65/95/1 dated 11.10.93. Apart from the material indicated above, the fact also remains that the cut off date, 1.4.1993, was fixed as a result of parleys between the employees'' union of certain departments and the State Government in April, 1993, This being the position, there is hardly any scope to say that cut off date has been fixed in an arbitrary manner or without any basis. Once a decision was taken in April, 1993 that no further such appointment was to be made, it would be a safe ground to categories the employees appointed prior to and after 1.4.1993. A perusal of the order of the learned Single Judge also indicates that some of the Petitioners had challenged the validity of fixing the cut off date by filing some separate petitions which had already been rejected by this Court. We, therefore, hardly find any good reason to strike down the fixation of cut off date.

The policy decision of the State Government taken for regularising the services of the appointees prior to 1.4.1993 is obviously applicable to all the Departments, irrespective of any other benefit which may be available to such an employee under any rules, or executive instructions in absence of rules of a particular Department.

Learned Counsel for the State has referred to two decisions of the Hon''ble Supreme Court on the proposition that policy decision of the Government may not be intefered with. One of the decisions is reported in State of Haryana and others Vs. Rai Chand Jain and others, etc. etc., In this case the payment of back wages was restricted by a policy decision to a specified period only. Such a decision was not intefered with, being a policy decision of the State. The other decision is reported in State of Punjab and Others Vs. Ram Lubhaya Bagga Etc. Etc., It has been held that wisdom of a policy decision taken by the State is not to be judicially scrutinised. By means of a policy decision, the financial assistance to the employees for medical treatment was restricted within the resources of the State. Such a decision was held to be policy decision and not interfered with; it is though held that it can always be seen and considered that policy decision may not be arbitrary or violative of law.

In the present case, we have found that the State Government has taken a poilcy decision to regularise the services of the appointees prior to 1.4.1993. So far the cut off date is concerned, it cannot be held to be arbitrary or discriminatory.

According to the submission made on behalf of the Appellant, if at all, cut off date should have been April 20,1995, when the Chief Secretary to the Government of Assam had issued letter to different Departments to take necessary action in consultation with Finance Department for early absorption/regularisation of workers engaged prior to 1.4.1993 and appropriate action to be taken against the officers who had made the appointments after the said date or had indulged in manipulation of records etc. In our view, the contention raised on behalf of the Appellants is misplaced. The letter dated 20.4.95 cannot be made basis of fixing cut off date. This letter is addressed to all Commissioners and Secretaries to the Government of Assam. It was indicated that the State Government had been issuing instructions from time to time for regularisation of services of work charge and muster roll employees. It was brought to the notice of the Government by Sadou Assam Karmachari Parishad that no action in pursuance of such direction was being taken by certain Departments. It was also indicated that some of such employees was also not getting their salaries regularly. In that view of the matter, it was reiterated by means of letter dated 20.4.95 that all concerned Departments should take necessary action in consultation with the Finance Department in respect of employees appointed prior to 1.4.1993. By no stretch of imagination it can be said that cut off date has been fixed by the said Government letter dated 20.4.95. By means of this letter only the earlier decision had been reiterated for early regularisation of services of employees engaged prior to 1.4.1993. Hence, the contention that letter dated 20.4.95 be made basis of cut off date has no force.

The learned Single Judge in the concluding part of the order had observed that regarding regularisation of employees engaged on or after 1.4.93, the matter is left to the Government to consider their cases in view of their long continuation in service. It may be done in concurrence with the Finance Department. It has also been made clear by the learned Single Judge and, in our view, rightly, that such workers cannot claim regularisation as a matter of right. It is also observed that in case the Government would like to discontinue the engagement of such employees appointed after 1.4.1993, it would be done on the basis of last come, first go. We feel that the learned Single Judge has rightly left the matter completely with the State Government.

In view of the discussions held above, it is quite obvious that no directions of any kind can legally be given in this regard. It is in the realm of taking a policy decision of the State Government. There cannot be any justification for making appointments in excess of the requirements and against the clear directions of the State Government not to appoint any such staff after a particular date. Flouting of such instructions by some officers creates problems for all. So far employees are concerned they hang on in uncertainty without accrual of any right for regularisation in absence of any sanctioned post, or in some cases, entry into the service against the rules. Though it was indicated in the order issued by the Government dated 20.4.95 that action be taken against the erring officers, but, in fact, whether any action was taken or not is not known. The officers who have authority to appoint must act responsibility. The problem arising out of such breach is manifold. Those who are working since long can be considered for regularisation only under any valid scheme, statutory provisions or policy decision, not otherwise. But it cannot be said that it does not affect others, at all. The right to be considered for public employment available to all stands restricted. Therefore, the concerned officers have to realise the seriousness of the matter and must act in accordance with law and the instructions of the Government, so that, all concerned may be saved of avoidable problems. If the Government sets any guidelines or issues any instructions for compliance of the officers of the Government, it is also for it to see that they are faithfully complied with.

Learned Counsel for the Appellants had, however, submitted that in any case the Appellants who have been appointed after 1.4.1993, they may be considered for regular appointment, as and when such recruitment is made against available vacancies. We hardly feel that there is any need to issue any such direction. In case sanctioned posts and vacancies exist and the recruitment is made, all eligible persons would be entitled for consideration. No exception in that regard can be made in respect of the Appellants. It is submitted that some of them may have become overaged having continued for long time in the services of the Government. So, for no fault of theirs, they would be disentitled for consideration. It is also submitted that they have also gained some experience of working and some weightage of the same can be given to such persons.

In this connection, our attention has been drawn to the observations made by the Hon''ble Supreme Court in para 19 of the judgment in the case of Ashwani Kumar and Others Vs. State of Bihar and Others, While laying down the manner in which the employees were to be considered for regularisation, it was provided that if some of them had become eligible to be appointed besides other competing candidates, condition of age bar may be relaxed appropriately, they having worked in the Department for a long time. Similarly, it was also to be considered that their experience etc. may also be given some weightage qua other candidates.

In connection with the above, it may be observed that the Hon''ble Supreme Court had made above provisions in regard to those who were found to be entitled for consideration for the purpose of regularisation. Hence, that may not be squarely applicable in the present case. However, in case such persons are considered for recruitment against any sanctioned vacancy, if and when available, some sympathetic consideration may be made for relaxation of their age for the period they worked, as well as, where other things being equal, their experience if of any use, may also be taken into account.

Learned Counsel for the Appellants also referred to a decision of the Hon''ble Supreme Court reported in State of Orissa and Others Vs. Mamtarani Sahoo and Another, attention has been drawn to the observations made in paragraph 12, where the request of the Petitioners was accepted to the effect that if the State makes any scheme for regularisation, then the benefit of that scheme may not be denied to them. 1 Suffice it to observe that it is always open to the State Government to frame any such scheme and in case the Government prepares any scheme for regularisation of appointees after 1.4.1993, obviously, the Appellants could not left out of consideration. The learned Single Judge has left this matter entirely to the State Government and we find no good reason to interfere in that part of the order.

In view of the discussion held above, subject to the observations made in the preceding paragraphs, we find no reason to interfere in the order passed by the learned Single Judge.

All the above noted 34 Writ Appeals are therefore, dismissed. There would, however, be no order as to costs. Interim orders, if any, operating, stand discharged.