Balwinder Singh and Others vs State of Punjab and Others

G.S. Singhvi, J.—This petition has been filed for quashing the order dated 10.5.1996 passed by the Director General of Police, Punjab (respondent No. 2) rejecting the claim of the petitioners to be regularised in service.

The averments made in the writ petition show that after they had served as volunteers with Punjab Home Guards, the petitioners were appointed as Corporal Instructors/Despatch Riders for a fixed period of 89 days. According to the petitioners, they served in that capacity between the years 1990 and 1995. They filed C.W.P. No. 14092 of 1995 and C.W.P. No. 14478 and 1995 for directing the respondents to regularise their services. These petitions were disposed of on 9.10.1995 with a direction to the respondents to decide their representation. In compliance of the High Court''s order, the respondent No. 2 passed the impugned order and rejected their plea for regularisation of service.

The first contention urged by Shri S.C. Pathela is that in view of their long service, the petitioners are entitled to be regularised in service and the order passed by the respondent No. 2 rejected their representation is per se illegal and arbitrary. Learned counsel submitted that the total service rendered by the petitioners in their capacity as volunteers and Corporal Instructors/Despatch Riders should have been taken into consideration for the purpose of regularisation of their services. The second contention urged by the learned counsel is that the respondents are duty bound to pay salary to the petitioners w.e.f. 1.9.1994 till the date their services were finally dis-continued. In support of his submission that the petitioners had physically worked even after 30.8.1994, the learned counsel relied on the office note dated 12.4.1994 which is said to have been recorded by the then Commandant General, Home Guards and Director Civil Defence and Annexures P.2, P.4, P.5. P.10 P.11 to P.13. The learned Deputy Advocate General argued that the petitioners who were initially appointed for a fixed period of 89 days and who were continued in employment till 1994 by giving similar appointments, have no right to be regularised in service in terms of the instructions issued by the government. Shri Khosla submitted that the initial appointment of the petitioners had been made in violation of Articles 14 and 16 of the Constitution and the Employment Exchange (Compulsory Notification of Vacancies) Act, 1959 and as such they are not entitled to be regularised in service. He also argued that the petitioners are not entitled to be paid salary for the period during which they may have been illegally allowed to continue in service by the District Commanders. He also made a statement that the government has already initiated action, against those District Commanders who unlawfully continued the petitioners and other similarly situated persons in employment after 31.8.1994.

He have considered the respective contention urged by Shri Pathela and Shri Khosla and are in agreement with the learned Deputy Advocate General that the petitioners are not entitled to be regularised in service. The instructions issued by the government vide circular dated 17.3.1992, on which reliance has been placed by Shri Pathela, cannot be invoked by the petitioners for issuance of a mandamus to the respondents to regularise their services because in terms of para 1(ii) of that circular regularisation of adhoc/temporarily appointed employees to class-II and class-IV services or posts could be made only if they had been appointed through employment exchange or by an open advertisement and it is an admitted fact that the petitioners were not appointed either through the agency of the employment exchange or by an open advertisement. Likewise, the instructions issued by the government on 18.1.1995 are not available to the petitioners for seeking regularisation of their services in view of the decisions of this Court in C.W.P. No. 9962 of 1995 Jagjinder Pal Singh and Ors. v. The State of Punjab and Ors., decided on 31.5.1996 and C.W.P. No. 18541 of 1996 Sukhbir Kaur v. State of Punjab and Ors., decided on 22.5.1997. The facts of Sukhbir Kaur''s case are quite similar to the facts of the present case. She was appointed as Clerk on 30.10.1989 for a period of 89 days and was allowed to continue in that capacity till 1994/1995. She prayed for regularisation of service on the basis of the instructions issued by the government vide circular dated 19.1.1995. The court rejected the plea of Sukhbir Kaur on the ground that she had not been appointed through the employment exchange or by an open advertisement. The following portions of the order dated 22.5.1997, which are relevant to the subject matter of this case, are extracted below :-

" A look at the order of appointment together with the note recorded by the respondent No. 2 on the application submitted by the petitioner shows that she had been appointed on purely and hoc and temporary basis for fixed term of 89 days. The record produced before the Court does not show that before appointing the petitioner the post of Clerk had been advertised or publicised through newspapers or by any other mode of publicity. It is also not borne out from the record that the respondent No. 2 had sent requisition to the employment exchange as per the requirement of Sections 3 and 4 of the Employment Exchange (Compulsory Notification of Vacancies) Act, 1959 even though the post against which the petitioner had been appointed was having a tenure of more than three months. To us, it is clear that the respondent No. 2 appointed the petitioner for 89 days with an ulterior motive of avoiding compliance of the provisions contained in the Act of 1959. This action of the respondents appears to be a part of the design and attempt to defeat the provisions of the equality clause enshrined in the Constitution and the Act of 1959. We can take judicial notice of the unsavory practice adopted by most of the appointing authorities in State of Punjab to make appointment for 89 days against the permanent as well as long term vacancies. By adopting this practice, the following two objectives are achieved by the concerned authorities :-

(i) They are not required to comply with the requirement of the statutory provisions contained in Sections 3 and 4 of the Act of 1959; and

(ii) They succeeded in appointing their own kiths and kins as well as the kith and kins of those who are in power, political and apolitical.

However, on the basis of such appointment, the petitioner cannot claim to have acquired any right whatsoever to be continued in service. Her appointment can appropriately be termed as a back-door entry to the public service which she successfully secured with the active connivance of the respondent No. 2. In other words, the appointment of the petitioners can be termed as a fraud on the Constitution and the Act of 1959...........

The issued whether a temporary/adhoc work charge daily wage employee is entitled to be regularised in service has consumed substantial time of the government. The Courts have also been flooded with writ petitions filed by such employees for directing the public employer to regularise their services on one or the other ground. By now, it has become well known that most of the public employers have resorted to the methodology of making appointment on ad hoc and temporary basis or on daily wages in violation of the statutory rules regulating recruitment. Even in cases where statutory rules have not been framed and only the executive instructions have been issued for making appointment to the public services, the competent authorities have flouted such instructions with impunity resulting in the growth of illegal employment market. In fact, the employment to public services has become an industry in which all and sundry have secured monetary benefits. Deprecating the practice of back-door appointment to the public service, the Supreme Court made the following scathing remarks in Delhi Development Horticulture Employees'' Union Vs. Delhi Administration, Delhi and others, :-

"Although there is Employment Exchange Act which requires recruitment on the basis of registration in the Employment Exchange, it has become a common practice to ignore the Employment Exchange and the persons registered in the Employment Exchanges and to employ and get employed directly those who are either not registered with the Employment Exchange or who though registered are lower in the long waiting list in the Employment Register. The Courts can take judicial notice of the fact that such employment is sought and given directly for various illegal considerations including money. The employment is given first for temporary periods with technical-breaks to circumvent the relevant rules, and is continued for 240 days or more days with a view to give the benefits of regularisation knowing the judicial trend that those who have completed 240 days or more days are directed to be automatically regularised. A good deal of illegal employment market has developed resulting in a new source of corruption and frustration of those who are waiting at the Employment Exchanges for years. Not all those who gain such back-door entry in the employment are in need of the particular jobs. Though already employed elsewhere they join the jobs for better and secured prospects. That is why most of the cases which come to the Courts are of employment in Government Departments, Public Undertakings or Agencies. Ultimately, it is the people who bear the heavy burden of surplus labour. The other equally injurious effect of indiscriminate ''regularisation has been that many of the agencies have stopped undertaking casual or temporary works though they are urgent and essential for fear that if those who are employed on such works arc absorbed as regular employees although the works are time bound and there is no need of the workmen beyond the completion of works undertaken. The public interests are thus jeopardised on both counts."

In Dr M.A. Haque and Others Vs. Union of India (UOI) and Others, , the Supreme Court once again lamented on this situation and observed:-

"If a disregard of the rules and the by-passing of the Public Service Commissions are permitted, it will open a back-door for illegal recruitment without limit. In fact, this Court has, of late, been witnessing a constant violation of the recruitment rules and a scant respect for the constitutional provisions requiring recruitment to the service through the Public Service Commission. It appears that since this Court has in some cases permitted regularisation of the irregularly recruited employees, some Governments and authorities have been increasingly resorting to irregular recruitments. The result has been that the recruitment rules and the Public Service Commissions have been kept in cold storage and candidates dictated by various considerations are being recruited as a matter of course."

In C.W.P. No. 9200 of 1993 Gurmail Singh and Ors. v. The State of Punjab and Ors., decided on 21.7.1994, a Division Bench of this Court look cognizance of the practice of by-passing the rules and Articles 14 and 16 of the Constitution in making appointment to public services and observed us under :

"Various rules framed under proviso to Article 309 contemplate appointment to a service by direct recruitment or by promotion or by both. Some service rules contemplate appointment through additional sources like deputation and transfer. However, during the last one decade and a half a dubious method has been adopted by almost all the Government in the country of by-passing the statutory rules and enactments while making appointments to public civil posts. This methodology involves making of appointments on daily wages or for fixed period. For making such appointments neither the requisition is required to be sent to the Public Service Commission nor to any other selecting body/agency, nor any advertisement is made, nor any sort of selection is made. This methodology gives leverage to various administrative and political personalities to appoint their kith and kin and near relatives in public services. Such appointees are sometimes called ad hoc appointees. They continue in service for a year or so and then the Government takes policy decision for regularisation of service of such employees on the pretext that they have rendered considerably long period of service. A sympathetic attitude by the Courts in some cases has led some to believe that provisions of equality clause in Articles 14 and 16 and other constitutional provisions can be flouted with impunity. Regularisation of service of ad hoc, daily wage, work charged, casual and fixed term appointees has virtually become fashion of the day. Total disregard of the statutory rules as well as Articles 14 and 16 of the Constitution at the time of recruitment to public services has acquired monstrous proportion. By-passing of Public Service Commission, S.S.S. Board and Employment Exchanges has become a rule rather than an exception. Equality in the matter of employment has been reduced to a proper slogan! Back door entry into Public Services has become the order of the day. This has naturally led not only to favoritism, nepotism and corruption but has also created a deep sense of frustration amongst meritorious persons who get themselves registered with the Employment Exchanges and who wait in the queue for years together to get an opportunity to compete for the post and look with disbelief when a medicore and a below-average candidate surpasses him and gets cake of public appointment without any competition."

In Piara Singh v. State of Haryana 1988(4) S.L.R. 739, a Division Bench of this Court tendered a decision which led to the filing of over ten thousands of writ petitions by adhoc/temporary, work-charge and daily wage employees for regularisation of their services. The Division Bench directed the government to regularise the services of all those who had completed one years''s service. It also directed, the government to frame policy for regularising the services of employees on completion of one year service.

That decision has been upset by the Supreme Court in State of Haryana and others Vs. Piara Singh and others etc. etc., . While reversing the judgment of the High Court, the Supreme Court held :

"The Court must, while giving directions for regularisation of services 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. The High Court in the instant case in directing wholesome regularisation of all such persons who have put in one year''s service, and that too unconditionally acted hastily. The direction that all those ad hoc/temporary employees who have continued for more than an year should be regularised is unsustainable. The direction has been given without reference to the existence of a vacancy. The direction in effect means that every ad hoc/temporary employee who has been continued for one year should be regularised even though (a) no vacancy is available for him which means creation of a vacancy (b) he was not sponsored by the Employment Exchange nor was he appointed in pursuance of a notification calling for applications which means he had entered by a back-door (c) he was not eligible and/or qualified for the post at the time of his appointment (d) his record of service since his appointment is not satisfactory. Moreover, from the mere continuation of an ad hoc employee for one year, it cannot be presumed that there is need for a regular post. Such a presumption may be justified only when such continuance extends to several years. Further, there can be no rule of thumb in such matters. Conditions and circumstances of one unit may not be the same as of the other. Just because in one case, a direction was given to regularise employees who have put in one year''s service as far as possible and subject to fulfilling the qualifications, it cannot be held that in each and every case such a direction must follow irrespective of and without taking into account the other relevant circumstances and considerations."

The Supreme Court also upheld the decision of the government to insist on the requirement that an employee must be sponsored by the employment exchange or should have been appointed after issuing a public advertisement before he can be regularised in service. This is evident from the following observations :

"The next question is whether the orders issued by the two governments were arbitrary and unreasonable in so far as they prescribed that only those employees who had been sponsored by Employment Exchange should alone by regularised. In our opinion this was a reasonable and wholesome requirement designed to curb and discourage back door entry and irregular appointments. The Government orders say that all those who have been sponsored by Employment Exchange or have been appointed after issuing a public advertisement alone should be regularised. We see no unreasonableness or invalidity in the same.

As stated above, it is a wholesome provision and ought not to have been invalidated. Moreover, as pointed out hereinafter, it is not found by the High Court that the writ petitioners were appointed only after obtaining a non-availability certificate from the Employment Exchange. The decision relied upon by the High Court does not say that even without such a certificate from Employment Exchange, an appointment can be made or that such appointment would be consistent with the mandate of Articles 14 and 16. We must also say that the further requirement prescribed in the orders viz., that the employees must have possessed the prescribed qualifications for the post at the time of his appointment on ad hoc basis is equally a valid condition. Indeed, no exception is taken to it by the High Court."

The Supreme Court also laid down five principles which should regulate recruitment to public services. The principle No. 3 laid down by the Supreme Court reads thus:-

"Even where an ad hoc or temporary employment is necessitated on account of exigencies of administration he should ordinarily be drawn from the employment exchange unless it cannot brook delay in which case pressing cause must be stated on the file. If no candidate is available or is not sponsored by the employment exchange, some appropriate method consistent with the requirements of Article 16 should be followed. In other words, there must be a notice published in the appropriate manner calling for applications and all those who apply in response thereto should be considered fairly.

In J and K. Public Service Commission, etc. Vs. Dr. Narinder Mohan and others etc. etc., , the Supreme Court reversed the directions given by the High Court for regularisation of services of Medical Officers who had rendered long periods of service. The Court held that where recruitment is regulated by statutory rules, the government has no power to issue executive instructions for regularising the services of ad hoc employees. While setting aside the directions given by the High Court for regularisation of the services of ad hoc doctors, the Supreme Court observed:-

".....The mode of recruitment suggested by the High Court, namely, regularisation by placing the service record of the respondents before the PSC and consideration thereof and PSC''s recommendation in that behalf in only a hybrid procedure not contemplated by the Rules. Moreover, when the Rules prescribe direct recruitment every eligible candidate is entitled to be considered and recruitment by open advertisement which is one of the well accepted modes of recruitment. Inviting applications for recruitment to fill in notified vacancies in consistent with the right to apply for the qualified and eligible persons and consideration of their claim to an office or post under the State is a guaranteed right given under Articles 14 and 16 of the Constitution. The direction, therefore, issued by the Division Bench is in negation of Articles 14 and 16 and in violation to the statutory rules. The PSC cannot be directed to devise a third mode of selection, as directed by the High Court, nor be mandated to disobey the Constitution and the law."

While dealing with the argument of the writ petitioners that the Apex Court had itself given direction for regularisation of the services of adhoc and temporary appointees, the Court observed:-

"Therefore, this Court did not appear to have intended to lay down as a general rule that in every category of ad hoc appointment, if the ad hoc appointee continues for long period, the rules of recruitment should be relaxed and the appointment by relaxation be made."...............After considering the observations made by the Supreme Court in Piara Singh''s case (supra), the government reviewed its policy on the issue of regularisation of the services of different categories of employees. Vide circular No. 11/18/88-4PF4H/7244 dated 7.5.1993, the government directed that the instructions issued vide circular letter No. 11/18/91-4PP-HI/13098 dated 6.9.1991 and circular letter No. 11/18/91/4-PP-III/5244 dated 22.4.1992 should be given effect to and the ad hoc employees who were covered by those instructions be regularised within a period of four months. The government also directed the Statutory Public Corporation Boards in the State to follow the instructions contained in the circular letters dated 6.9.1991 and 22.4.1992 in the matter of regularisation of their ad hoc employees. At the same time, a direction was issued that no appointment should be made on ad hoc basis on a post on which an ad hoc employee is already working. The government also decided to regularise the services of the work charge/casual/daily wage appointees. Those work charges employees who were working on non-project work-charge establishments were directed to be regularised if they had completed to be regularised if they had completed five years'' service as on 31.9.1992. For casual/daily wage employees, the condition of ten years'' service as on 31.8.1992 come to be prescribed.

Some time in the year 1994, a proposal was mooted for regularising the services of ad hoc and temporary employee who had completed two years'' service as on 31.12.1993. However, the then Chief Minister made a suggestion on 3.12.1994 that provision may be made for regularisation of services of employees who had completed one year''s service on 30.11.1994. Thereafter, memorandum dated 5.12.1994 was placed before the Council of Ministers for taking a decision on the issue of regularisation of services of those who had completed one year''s service as on 30.11.1994. The conditions which were required to be satisfied for regularisation of services of ad hoc/temporary appointees were:-

"(i) that the adhoc/temporarily appointed employees should have completed a minimum of one year service on 30th November, 1994 and was in service on 31.11.1994. While calculating the period of service any break of notional nature not exceeding 30 days falling between adhoc/temporary appointments in the same category of post(s) in the same department is to be ignored. However, the break in adhoc/temporary service would not be ignored in case where:-

a) the employees concerned left service of his own volition either to join some other department or for some other reasons; or

b) the adhoc/temporary appointment was against a post/vacancy for which no regular recruitment was intended/required to be made e.g. leave arrangement or filling of other short term vacancies.

(ii) that they fulfil the conditions of eligibility as prescribed (i.e. they have been recruited through the Employment Exchange or by open advertisement), academic qualifications, experience and the condition of 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 Committee, constituted in accordance with the instructions contained in Government circular letter No. 12/30/86-IGE/4139 dated 15.4.1986.

(vii) the seniority of the adhoc/temporarily appointed Class-III and Class-IV employees so regularised vis-a-vis Class-III and IV employees appointed on regular basis shall be determined with effect from 30.11.1994. The inter-seniority of such adhoc/temporarily appointed Class-III and Class-IV employees shall be determined in accordance with the date of their joining the post on adhoc/temporary basis. If the date of joining the post(s) on adhoc/temporary basis by such adhoc/temporarily appointed employees was the same then the elder employees shall rank senior to an employee younger in age. If the date of joining of the direct recruit and the date of regularisation of adhoc/temporarily appointed employees is the same, the direct recruit shall be senior."

The Council of Ministers considered the proposal contained in the memorandum dated 5.1.1994 and approved it with slight modification in paragraph (i). The decision of the cabinet was in the following terms:-

"Those employees who were appointed on adhoc/temporary basis and who have completed ad hoc/temporary service of 240 days as on 31.12.1994, the services of such employees be regularised. While counting the period of service, the notional break which may not be more than 30 days in the same year, may be ignored."

However, what is surprising is that the final order issued on 18.1.1995 under the signatures of the Chief Secretary incorporate Clause (ii) which is substantially different than the one placed before the Council of Ministers. It appears that even without the approval of the Council of Ministers, the then Chief Secretary or some officer in his Secretariat deleted the condition of recruitment through employment exchange or by open advertisement.........

From what has been narrated hereinabove, it is revealed that in spite of the reversal of directions given by the High Court to the Government to regularise the services of those employees who had completed only one year''s service, the Government of Punjab took a policy decision to regularise the services of those who had completed only 240 days of service. This decision of the Government was clearly contrary to the law laid down by the Supreme Court. It is difficult to comprehend that a Government which claims itself to be governed by rule of law could take a decision clearly disregarding the law laid down by the Supreme Court, which is binding on all by virtue of Article 141 of the Constitution. What is more surprising is that while issuing the order dated 18.1.1995 the Chief Secretary or some other officer in the Government amended para 1(ii) of the memorandum placed before the Council of Ministers is without its approval. The fact that this should have been done by the higher administrative authorities of the Government shows, the casual and perfunctory approach of the concerned officer and the intention of the respondent No. 1 to justify the illegal and fraudulent orders passed by various authorities appointing their favorites on ad hoc/temporary basis for fixed period. But for the fact that the Government took a wise decision to withdraw the instructions contained in the order dated 18.1.1995, there was every possibility of the same being declared unconstitutional."

In our opinion, the decision in Sukhbir Kaur''s case is squarely applicable to the facts of the present case and, therefore, no mandamus can be issued to the respondents to regularise the services of the petitioners. As a logical corollary, we hold that the order Annexure P-9 is neither illegal nor arbitrary or violative of Articles 14 and 16 of the Constitution.

However, we find merit in Shri Pathela''s submission that the petitioner are entitled to be paid salary for the period during which they had physically worked as Corporal Instructors/Despatch Riders. The documents on which reliance has been placed by Shri Pathela do support his assertion that the petitioners had physically worked as Corporal Instructor/Despatch Riders after 1.9.1984. Whether or not the District Commanders had the authority to allow the petitioners to remain in employment is a matter on which the government has already initiated enquiry against the concerned officers by taking the view that they had acted beyond their jurisdiction and we hope that the higher departmental authorities will conclude these enquiries expeditiously. However, the petitioner who had actually discharged duties cannot be denied salary for the period during which they had worked. We, therefore, deem it appropriate to direct the respondents to may to the petitioners the pay and allowances for the period during which they actually worked as Corporal Instructor/Despatch Riders.

In the result, we dismiss the writ petition subject to the direction that the petitioners shall be paid pay and allowances for the period during which they had actually worked as Corporal Instructor/Despatch Riders. This shall be done within a period of two months of the presentation of certified copy of this order before the respondent No. 2. We also direct the government to recover the amount of pay and allowances, which will be required to be paid to the petitioners in terms of this order, from the salary of the officers who may be found to have continued the petitioners in employment by acting beyond their jurisdiction. The enquiries pending against the concerned officers shall be completed within 4 months and a report be sent to the Court whether or not the government has recovered the amount from the salary of guilty officers. The case be listed before the Court on 1.8.1998 so that the Court may know whether the directions given hereinabove have been complied with or not.

The Bench Secretary is directed to hand over an attached copy of this order to the learned Deputy Advocate General for the purpose of compliance.