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RAM SAGAR AND OTHERS versus UNION OF INDIA AND OTHERS

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Ram Sagar And Others v. Union Of India And Others - WRIT - A No. 11800 of 1999 [2005] RD-AH 5233 (7 November 2005)

 

This is an UNCERTIFIED copy for information/reference. For authentic copy please refer to certified copy only. In case of any mistake, please bring it to the notice of Joint Registrar(Copying).

HIGH COURT OF JUDICATURE OF ALLAHABAD

COURT NO. 34

CIVIL MISC. WRIT PETITION NO.11800 OF 1999

Ram Sagar & Ors.           -------------    Petitioners              

Versus.

Union of India & Ors.        -------------  Respondents

_________

Hon'ble Dr. B.S. Chauhan, J.

Hon'ble  Bharati Sapru, J.

(By Hon'ble Dr. B.S. Chauhan, J)

This writ petition has been filed against the judgment and order dated 10/3/1999 passed by the Central Administrative Tribunal, Allahabad Bench rejecting the application of the petitioners for re-engagement and regularisation.

This case is squarely covered by the judgment and order passed by this Bench in Writ Petition No. 14177 of 2001, Union of India & Ors Vs. Dukkhi Lal & Anr decided on 28/10/2005, wherein the same issue has been considered. Petitioners' case had been that at one time they had been employed as daily wagers and completed 240 days of service. However, their services stood terminated after the work of the project was over. This all happened in the year 1971-1972.

Subsequently, applications had been filed before the learned Tribunal time and again wherein the Tribunal issued certain directions that relief could not be granted in pursuance of the said directions. Petitioners again approached the Tribunal by filing Original Application No. 183 of 1997 which has been rejected. Hence this petition.  

Learned counsel for the petitioners has submitted that during the Indo-Pakistan war in 1971, petitioners had been appointed as Chowkidar on daily wages. They worked for 240 days in a calendar year, but when the project was over their services had been terminated. However, regularisation is being sought on the ground that earlier some persons who had worked for some period had been re-engaged after retrenchment and regularised, therefore same relief ought to have been granted by the Tribunal.

The issue of regularisation has been considered by the Hon'ble Apex Court time and again.

The question as to whether the services of certain employees appointed on ad hoc basis should be regularised relates to the condition of service. The power to prescribe the conditions of service can be exercised either by making Rules under the proviso to Article 309 of the Constitution of India or any analogous provision and in the absence of such Rules, under the instructions issued in exercise of its executive power. The Court comes into the picture only to ensure observance of fundamental rights and statutory provisions, Rules and other instructions, if any, governing the conditions of service. The main concern of the Court in such matters is to ensure the Rule of Law and to see that the executive acts fairly and gives a fair deal to its employees consistent with the requirements of Articles 14 and 16. It also means that the State should not exploit its employees nor should it seek to take advantage of the haplessness and misery of either the unemployed persons or the employees, as the case may be. As is often said, the State must be a model employer. It is for this reason, it is held that equal pay must be given for equal work, which is indeed one of the Directive Principles of the Constitution. It is for this very reason it is held that a person should not be kept in a temporary or ad hoc status for long. A perusal of the authorities would show that appointments are as a rule to be made in accordance with statutory rules, giving equal opportunity to all the aspirants to apply for the posts and following the prevalent policy of reservation in favour of Scheduled Castes/Scheduled Tribes and other backward classes. Whenever the employees are appointed on ad hoc basis to meet an emergent situation, every effort should be made to replace them by the employees appointed on regular basis in accordance with the relevant rules as expeditiously as possible. Where the appointment on ad hoc basis has continued for long and the State has made rules for regularisation,  case for regularisation of employee has to be considered in accordance with the said rules. Where, however, no rules are operative, it is open to the employees to show that they have been dealt with arbitrarily and their weak position has been exploited by keeping them on ad hoc for long spell of time. However, it is a question of fact whether in the given situation, they were treated arbitrarily. (Vide Dr. A.K. Jain Vs. Union of India, 1987 Supp SCC 497; Jacob M. Puthuparambil & Ors. Vs. Kerala Water Authority & Ors., (1991) 1 SCC 28; State of Haryana & Ors. Vs. Piara Singh & Ors., AIR 1992 SC 2130; J & K. Public Service Commission etc. Vs. Dr. Narinder Mohan & ors, AIR 1994 SC 1808; Er. Ramakrishnan & Ors. Vs. State of Kerala & Ors., (1996) 10 SCC 565; and Ashwani Kumar & Ors Vs. State of Bihar & Ors., AIR 1997 SC 1628).

In Khagesh Kumar Vs. Inspector General of Registration, U.P. & ors. , AIR 1996 SC 417, the Hon'ble Supreme Court did not issue direction for regularisation of employees who had been appointed on ad hoc basis or on daily wages after the cut off date, i.e., 1.10.1986 as was required by the provisions of U.P. regularisation of Ad hoc Appointment (On posts Outside the Purview of the Public Service Commission) Rules, 1979. The same view has been taken by the Supreme Court in Inspector General of Registration, U.P. & anr. Vs. Avdesh Kumar & ors., (1996) 9 SCC 217. Moreover, in the above referred cases it has been laid down that for the purpose of regularisation, various pre-requisite conditions are to be fulfilled, i.e., the temporary/as hoc appointment of the employee should be in consonance with the statutory rules and it should not be a back-door entry. The service record of the employee should be satisfactory; the employee should be eligible and/or qualified for the post at the time of his initial appointment. There must be a sanctioned post against which the employee seeks regularisation and on the said sanctioned post, there must be a vacancy. Moreover, regularisation is to be made according to seniority of the temporary/ad hoc employees. The regularisation should not be in contravention of the State Policy regarding reservation in favour of Scheduled Castes/Scheduled tribes and other backward classes and other categories for which State has enacted any Statute or framed rules or issued any Government Order etc.

Similar view has been reiterated by the Hon'ble Supreme Court in Union of India Vs. Bishamber Dutt, (1996) 11 SCC 341; and State of Uttar Pradesh Vs. U.P. Madhyamik Shiksha Parishad Shramik Sangh, AIR 1996 SC 708. In the case of State of Himachal Pradesh Vs. Ashwani Kumar, (1996) 1 SCC 773, the Apex Court held that if an employment is under a particular Scheme or the employee is being paid out of the funds of a Scheme, in case the Scheme comes to closure or the funds are not available, the Court has no right to issue direction to regularise the service of such an employee or to continue him on some other project, for the reason that "no vested right is created in a temporary employment."

In Prabhu Dayal Jat Vs. Alwar Sahkari Bhumi  Vikas  Bank, 1991 Lab.& IC 944, the Court rejected the case of an employee, for regularisation as his services  stood terminated on the ground that he had  been appointed  without any authorisation of law.

The question of regularisation does not arise by merely working for 240 days or any particular number of days, unless it is so long that his continuation on ad hoc basis becomes arbitrary as no such ad hoc employee can derive any benefit for working for particular number of days or even for years under the interim order of the Court. More so, his appointment should be directly in accordance with law. (Vide M.D. U.P. Land Development Corp. Vs. Amar Singh, AIR 2003 SC 2357; A. Umarani Vs. Registrar, Coop. Societies, (2004) 7 SCC 112; Pankaj Gupta Vs. State of J & K, (2004) 8 SCC 353 and Dhampur Sugar Mills Ltd. Bhola Singh, (2005) 2 SCC 470).

In Vindon T. Vs. University of Calicut (2002) 4 SCC 726 and  Mahendra L. Jain & Ors Vs. Indore Development Authority & Ors., (2005) 1 SCC 639, it has categorically been held by the Hon'ble Apex Court that the appointees appointed irregularly can be regularised but illegally appointed employees cannot be regularised. As illegal appointments are void ab initio being opposed to public policy and violative of Articles 14 and 16 of the Constitution, and all such authorities and instrumentalities which are State within the meaning of Article 12 of the Constitution, must give strict observance to the  mandate of the Constitution. Regularisation can never be claimed as a mater of right. A daily wager in absence of statutory provisions in this behalf cannot claim entitlement for regularisation.

In State of West Bengal & Ors. Vs.  Alpana Roy & Ors., (2005) AIR SCW 4920, the Hon'ble Supreme Court held that if someone's name is included in the list of unapproved employees for a long time, mere empanelment would not give any right of regularisation in service if the appointment at the initial stage had been made de hors the recruitment rules.

It is also settled legal proposition that a retrenched employee cannot claim the relief of regularisation unless his termination from service is found to be illegal. Thus, only an employee who is continuing in service for a long time is eligible for seeking such a relief. (Vide H.P. Housing Board Vs. Om Pal & Ors, AIR 1997 SC 2685 and Ramchander & Ors Vs. Additional District Magistrate & ors, (1998) 1 SCC 183).    

Thus, it is evident from the above settled legal proposition that a person who had been appointed on daily wages and worked for a period of 1 or 2 years, cannot claim regularisation in absence of any statutory provisions. He must possess the eligibility for the post on the date of initial appointment and the appointment should be made in consonance with the statutory provisions. The regularisation is not permissible ignoring the policy framed by the State providing for reservation in favour of certain classes. A retrenched employee cannot claim regularisation without asking for quashing his termination order. More so, regularisation may be either under a scheme framed by the employer or under the statutory provision framed by the State for this purpose.

In view of the above, we do not find any cogent reason to interfere with the well reasoned judgment and order of the learned Tribunal dated  10/3/1999. Writ petition stands dismissed.

07 .11.2005

SB

COURT NO. 34

CIVIL MISC. WRIT PETITION NO.11800 OF 1999

Ram Sagar & Ors.           -------------    Petitioners              

Versus.

Union of India & Ors.        -------------  Respondents

_________

Hon'ble Dr. B.S. Chauhan, J.

Hon'ble  Bharati Sapru, J.

(By Hon'ble Dr. B.S. Chauhan, J)

This writ petition has been filed against the judgment and order dated 10/3/1999 passed by the Central Administrative Tribunal, Allahabad Bench rejecting the application of the petitioners for re-engagement and regularisation.

This case is squarely covered by the judgment and order passed by this Bench in Writ Petition No. 14177 of 2001, Union of India & Ors Vs. Dukkhi Lal & Anr decided on 28/10/2005, wherein the same issue has been considered. Petitioners' case had been that at one time they had been employed as daily wagers and completed 240 days of service. However, their services stood terminated after the work of the project was over. This all happened in the year 1971-1972.

Subsequently, applications had been filed before the learned Tribunal time and again wherein the Tribunal issued certain directions that relief could not be granted in pursuance of the said directions. Petitioners again approached the Tribunal by filing Original Application No. 183 of 1997 which has been rejected. Hence this petition.  

Learned counsel for the petitioners has submitted that during the Indo-Pakistan war in 1971, petitioners had been appointed as Chowkidar on daily wages. They worked for 240 days in a calendar year, but when the project was over their services had been terminated. However, regularisation is being sought on the ground that earlier some persons who had worked for some period had been re-engaged after retrenchment and regularised, therefore same relief ought to have been granted by the Tribunal.

The issue of regularisation has been considered by the Hon'ble Apex Court time and again.

The question as to whether the services of certain employees appointed on ad hoc basis should be regularised relates to the condition of service. The power to prescribe the conditions of service can be exercised either by making Rules under the proviso to Article 309 of the Constitution of India or any analogous provision and in the absence of such Rules, under the instructions issued in exercise of its executive power. The Court comes into the picture only to ensure observance of fundamental rights and statutory provisions, Rules and other instructions, if any, governing the conditions of service. The main concern of the Court in such matters is to ensure the Rule of Law and to see that the executive acts fairly and gives a fair deal to its employees consistent with the requirements of Articles 14 and 16. It also means that the State should not exploit its employees nor should it seek to take advantage of the haplessness and misery of either the unemployed persons or the employees, as the case may be. As is often said, the State must be a model employer. It is for this reason, it is held that equal pay must be given for equal work, which is indeed one of the Directive Principles of the Constitution. It is for this very reason it is held that a person should not be kept in a temporary or ad hoc status for long. A perusal of the authorities would show that appointments are as a rule to be made in accordance with statutory rules, giving equal opportunity to all the aspirants to apply for the posts and following the prevalent policy of reservation in favour of Scheduled Castes/Scheduled Tribes and other backward classes. Whenever the employees are appointed on ad hoc basis to meet an emergent situation, every effort should be made to replace them by the employees appointed on regular basis in accordance with the relevant rules as expeditiously as possible. Where the appointment on ad hoc basis has continued for long and the State has made rules for regularisation,  case for regularisation of employee has to be considered in accordance with the said rules. Where, however, no rules are operative, it is open to the employees to show that they have been dealt with arbitrarily and their weak position has been exploited by keeping them on ad hoc for long spell of time. However, it is a question of fact whether in the given situation, they were treated arbitrarily. (Vide Dr. A.K. Jain Vs. Union of India, 1987 Supp SCC 497; Jacob M. Puthuparambil & Ors. Vs. Kerala Water Authority & Ors., (1991) 1 SCC 28; State of Haryana & Ors. Vs. Piara Singh & Ors., AIR 1992 SC 2130; J & K. Public Service Commission etc. Vs. Dr. Narinder Mohan & ors, AIR 1994 SC 1808; Er. Ramakrishnan & Ors. Vs. State of Kerala & Ors., (1996) 10 SCC 565; and Ashwani Kumar & Ors Vs. State of Bihar & Ors., AIR 1997 SC 1628).

In Khagesh Kumar Vs. Inspector General of Registration, U.P. & ors. , AIR 1996 SC 417, the Hon'ble Supreme Court did not issue direction for regularisation of employees who had been appointed on ad hoc basis or on daily wages after the cut off date, i.e., 1.10.1986 as was required by the provisions of U.P. regularisation of Ad hoc Appointment (On posts Outside the Purview of the Public Service Commission) Rules, 1979. The same view has been taken by the Supreme Court in Inspector General of Registration, U.P. & anr. Vs. Avdesh Kumar & ors., (1996) 9 SCC 217. Moreover, in the above referred cases it has been laid down that for the purpose of regularisation, various pre-requisite conditions are to be fulfilled, i.e., the temporary/as hoc appointment of the employee should be in consonance with the statutory rules and it should not be a back-door entry. The service record of the employee should be satisfactory; the employee should be eligible and/or qualified for the post at the time of his initial appointment. There must be a sanctioned post against which the employee seeks regularisation and on the said sanctioned post, there must be a vacancy. Moreover, regularisation is to be made according to seniority of the temporary/ad hoc employees. The regularisation should not be in contravention of the State Policy regarding reservation in favour of Scheduled Castes/Scheduled tribes and other backward classes and other categories for which State has enacted any Statute or framed rules or issued any Government Order etc.

Similar view has been reiterated by the Hon'ble Supreme Court in Union of India Vs. Bishamber Dutt, (1996) 11 SCC 341; and State of Uttar Pradesh Vs. U.P. Madhyamik Shiksha Parishad Shramik Sangh, AIR 1996 SC 708. In the case of State of Himachal Pradesh Vs. Ashwani Kumar, (1996) 1 SCC 773, the Apex Court held that if an employment is under a particular Scheme or the employee is being paid out of the funds of a Scheme, in case the Scheme comes to closure or the funds are not available, the Court has no right to issue direction to regularise the service of such an employee or to continue him on some other project, for the reason that "no vested right is created in a temporary employment."

In Prabhu Dayal Jat Vs. Alwar Sahkari Bhumi  Vikas  Bank, 1991 Lab.& IC 944, the Court rejected the case of an employee, for regularisation as his services  stood terminated on the ground that he had  been appointed  without any authorisation of law.

The question of regularisation does not arise by merely working for 240 days or any particular number of days, unless it is so long that his continuation on ad hoc basis becomes arbitrary as no such ad hoc employee can derive any benefit for working for particular number of days or even for years under the interim order of the Court. More so, his appointment should be directly in accordance with law. (Vide M.D. U.P. Land Development Corp. Vs. Amar Singh, AIR 2003 SC 2357; A. Umarani Vs. Registrar, Coop. Societies, (2004) 7 SCC 112; Pankaj Gupta Vs. State of J & K, (2004) 8 SCC 353 and Dhampur Sugar Mills Ltd. Bhola Singh, (2005) 2 SCC 470).

In Vindon T. Vs. University of Calicut (2002) 4 SCC 726 and  Mahendra L. Jain & Ors Vs. Indore Development Authority & Ors., (2005) 1 SCC 639, it has categorically been held by the Hon'ble Apex Court that the appointees appointed irregularly can be regularised but illegally appointed employees cannot be regularised. As illegal appointments are void ab initio being opposed to public policy and violative of Articles 14 and 16 of the Constitution, and all such authorities and instrumentalities which are State within the meaning of Article 12 of the Constitution, must give strict observance to the  mandate of the Constitution. Regularisation can never be claimed as a mater of right. A daily wager in absence of statutory provisions in this behalf cannot claim entitlement for regularisation.

In State of West Bengal & Ors. Vs.  Alpana Roy & Ors., (2005) AIR SCW 4920, the Hon'ble Supreme Court held that if someone's name is included in the list of unapproved employees for a long time, mere empanelment would not give any right of regularisation in service if the appointment at the initial stage had been made de hors the recruitment rules.

It is also settled legal proposition that a retrenched employee cannot claim the relief of regularisation unless his termination from service is found to be illegal. Thus, only an employee who is continuing in service for a long time is eligible for seeking such a relief. (Vide H.P. Housing Board Vs. Om Pal & Ors, AIR 1997 SC 2685 and Ramchander & Ors Vs. Additional District Magistrate & ors, (1998) 1 SCC 183).    

Thus, it is evident from the above settled legal proposition that a person who had been appointed on daily wages and worked for a period of 1 or 2 years, cannot claim regularisation in absence of any statutory provisions. He must possess the eligibility for the post on the date of initial appointment and the appointment should be made in consonance with the statutory provisions. The regularisation is not permissible ignoring the policy framed by the State providing for reservation in favour of certain classes. A retrenched employee cannot claim regularisation without asking for quashing his termination order. More so, regularisation may be either under a scheme framed by the employer or under the statutory provision framed by the State for this purpose.

In view of the above, we do not find any cogent reason to interfere with the well reasoned judgment and order of the learned Tribunal dated  10/3/1999. Writ petition stands dismissed.

07 .11.2005

SB

COURT NO. 34

CIVIL MISC. WRIT PETITION NO.11800 OF 1999

Ram Sagar & Ors.           -------------    Petitioners              

Versus.

Union of India & Ors.        -------------  Respondents

_________

Hon'ble Dr. B.S. Chauhan, J.

Hon'ble  Bharati Sapru, J.

(By Hon'ble Dr. B.S. Chauhan, J)

This writ petition has been filed against the judgment and order dated 10/3/1999 passed by the Central Administrative Tribunal, Allahabad Bench rejecting the application of the petitioners for re-engagement and regularisation.

This case is squarely covered by the judgment and order passed by this Bench in Writ Petition No. 14177 of 2001, Union of India & Ors Vs. Dukkhi Lal & Anr decided on 28/10/2005, wherein the same issue has been considered. Petitioners' case had been that at one time they had been employed as daily wagers and completed 240 days of service. However, their services stood terminated after the work of the project was over. This all happened in the year 1971-1972.

Subsequently, applications had been filed before the learned Tribunal time and again wherein the Tribunal issued certain directions that relief could not be granted in pursuance of the said directions. Petitioners again approached the Tribunal by filing Original Application No. 183 of 1997 which has been rejected. Hence this petition.  

Learned counsel for the petitioners has submitted that during the Indo-Pakistan war in 1971, petitioners had been appointed as Chowkidar on daily wages. They worked for 240 days in a calendar year, but when the project was over their services had been terminated. However, regularisation is being sought on the ground that earlier some persons who had worked for some period had been re-engaged after retrenchment and regularised, therefore same relief ought to have been granted by the Tribunal.

The issue of regularisation has been considered by the Hon'ble Apex Court time and again.

The question as to whether the services of certain employees appointed on ad hoc basis should be regularised relates to the condition of service. The power to prescribe the conditions of service can be exercised either by making Rules under the proviso to Article 309 of the Constitution of India or any analogous provision and in the absence of such Rules, under the instructions issued in exercise of its executive power. The Court comes into the picture only to ensure observance of fundamental rights and statutory provisions, Rules and other instructions, if any, governing the conditions of service. The main concern of the Court in such matters is to ensure the Rule of Law and to see that the executive acts fairly and gives a fair deal to its employees consistent with the requirements of Articles 14 and 16. It also means that the State should not exploit its employees nor should it seek to take advantage of the haplessness and misery of either the unemployed persons or the employees, as the case may be. As is often said, the State must be a model employer. It is for this reason, it is held that equal pay must be given for equal work, which is indeed one of the Directive Principles of the Constitution. It is for this very reason it is held that a person should not be kept in a temporary or ad hoc status for long. A perusal of the authorities would show that appointments are as a rule to be made in accordance with statutory rules, giving equal opportunity to all the aspirants to apply for the posts and following the prevalent policy of reservation in favour of Scheduled Castes/Scheduled Tribes and other backward classes. Whenever the employees are appointed on ad hoc basis to meet an emergent situation, every effort should be made to replace them by the employees appointed on regular basis in accordance with the relevant rules as expeditiously as possible. Where the appointment on ad hoc basis has continued for long and the State has made rules for regularisation,  case for regularisation of employee has to be considered in accordance with the said rules. Where, however, no rules are operative, it is open to the employees to show that they have been dealt with arbitrarily and their weak position has been exploited by keeping them on ad hoc for long spell of time. However, it is a question of fact whether in the given situation, they were treated arbitrarily. (Vide Dr. A.K. Jain Vs. Union of India, 1987 Supp SCC 497; Jacob M. Puthuparambil & Ors. Vs. Kerala Water Authority & Ors., (1991) 1 SCC 28; State of Haryana & Ors. Vs. Piara Singh & Ors., AIR 1992 SC 2130; J & K. Public Service Commission etc. Vs. Dr. Narinder Mohan & ors, AIR 1994 SC 1808; Er. Ramakrishnan & Ors. Vs. State of Kerala & Ors., (1996) 10 SCC 565; and Ashwani Kumar & Ors Vs. State of Bihar & Ors., AIR 1997 SC 1628).

In Khagesh Kumar Vs. Inspector General of Registration, U.P. & ors. , AIR 1996 SC 417, the Hon'ble Supreme Court did not issue direction for regularisation of employees who had been appointed on ad hoc basis or on daily wages after the cut off date, i.e., 1.10.1986 as was required by the provisions of U.P. regularisation of Ad hoc Appointment (On posts Outside the Purview of the Public Service Commission) Rules, 1979. The same view has been taken by the Supreme Court in Inspector General of Registration, U.P. & anr. Vs. Avdesh Kumar & ors., (1996) 9 SCC 217. Moreover, in the above referred cases it has been laid down that for the purpose of regularisation, various pre-requisite conditions are to be fulfilled, i.e., the temporary/as hoc appointment of the employee should be in consonance with the statutory rules and it should not be a back-door entry. The service record of the employee should be satisfactory; the employee should be eligible and/or qualified for the post at the time of his initial appointment. There must be a sanctioned post against which the employee seeks regularisation and on the said sanctioned post, there must be a vacancy. Moreover, regularisation is to be made according to seniority of the temporary/ad hoc employees. The regularisation should not be in contravention of the State Policy regarding reservation in favour of Scheduled Castes/Scheduled tribes and other backward classes and other categories for which State has enacted any Statute or framed rules or issued any Government Order etc.

Similar view has been reiterated by the Hon'ble Supreme Court in Union of India Vs. Bishamber Dutt, (1996) 11 SCC 341; and State of Uttar Pradesh Vs. U.P. Madhyamik Shiksha Parishad Shramik Sangh, AIR 1996 SC 708. In the case of State of Himachal Pradesh Vs. Ashwani Kumar, (1996) 1 SCC 773, the Apex Court held that if an employment is under a particular Scheme or the employee is being paid out of the funds of a Scheme, in case the Scheme comes to closure or the funds are not available, the Court has no right to issue direction to regularise the service of such an employee or to continue him on some other project, for the reason that "no vested right is created in a temporary employment."

In Prabhu Dayal Jat Vs. Alwar Sahkari Bhumi  Vikas  Bank, 1991 Lab.& IC 944, the Court rejected the case of an employee, for regularisation as his services  stood terminated on the ground that he had  been appointed  without any authorisation of law.

The question of regularisation does not arise by merely working for 240 days or any particular number of days, unless it is so long that his continuation on ad hoc basis becomes arbitrary as no such ad hoc employee can derive any benefit for working for particular number of days or even for years under the interim order of the Court. More so, his appointment should be directly in accordance with law. (Vide M.D. U.P. Land Development Corp. Vs. Amar Singh, AIR 2003 SC 2357; A. Umarani Vs. Registrar, Coop. Societies, (2004) 7 SCC 112; Pankaj Gupta Vs. State of J & K, (2004) 8 SCC 353 and Dhampur Sugar Mills Ltd. Bhola Singh, (2005) 2 SCC 470).

In Vindon T. Vs. University of Calicut (2002) 4 SCC 726 and  Mahendra L. Jain & Ors Vs. Indore Development Authority & Ors., (2005) 1 SCC 639, it has categorically been held by the Hon'ble Apex Court that the appointees appointed irregularly can be regularised but illegally appointed employees cannot be regularised. As illegal appointments are void ab initio being opposed to public policy and violative of Articles 14 and 16 of the Constitution, and all such authorities and instrumentalities which are State within the meaning of Article 12 of the Constitution, must give strict observance to the  mandate of the Constitution. Regularisation can never be claimed as a mater of right. A daily wager in absence of statutory provisions in this behalf cannot claim entitlement for regularisation.

In State of West Bengal & Ors. Vs.  Alpana Roy & Ors., (2005) AIR SCW 4920, the Hon'ble Supreme Court held that if someone's name is included in the list of unapproved employees for a long time, mere empanelment would not give any right of regularisation in service if the appointment at the initial stage had been made de hors the recruitment rules.

It is also settled legal proposition that a retrenched employee cannot claim the relief of regularisation unless his termination from service is found to be illegal. Thus, only an employee who is continuing in service for a long time is eligible for seeking such a relief. (Vide H.P. Housing Board Vs. Om Pal & Ors, AIR 1997 SC 2685 and Ramchander & Ors Vs. Additional District Magistrate & ors, (1998) 1 SCC 183).    

Thus, it is evident from the above settled legal proposition that a person who had been appointed on daily wages and worked for a period of 1 or 2 years, cannot claim regularisation in absence of any statutory provisions. He must possess the eligibility for the post on the date of initial appointment and the appointment should be made in consonance with the statutory provisions. The regularisation is not permissible ignoring the policy framed by the State providing for reservation in favour of certain classes. A retrenched employee cannot claim regularisation without asking for quashing his termination order. More so, regularisation may be either under a scheme framed by the employer or under the statutory provision framed by the State for this purpose.

In view of the above, we do not find any cogent reason to interfere with the well reasoned judgment and order of the learned Tribunal dated  10/3/1999. Writ petition stands dismissed.

07 .11.2005

SB

COURT NO. 34

CIVIL MISC. WRIT PETITION NO.11800 OF 1999

Ram Sagar & Ors.           -------------    Petitioners              

Versus.

Union of India & Ors.        -------------  Respondents

_________

Hon'ble Dr. B.S. Chauhan, J.

Hon'ble  Bharati Sapru, J.

(By Hon'ble Dr. B.S. Chauhan, J)

This writ petition has been filed against the judgment and order dated 10/3/1999 passed by the Central Administrative Tribunal, Allahabad Bench rejecting the application of the petitioners for re-engagement and regularisation.

This case is squarely covered by the judgment and order passed by this Bench in Writ Petition No. 14177 of 2001, Union of India & Ors Vs. Dukkhi Lal & Anr decided on 28/10/2005, wherein the same issue has been considered. Petitioners' case had been that at one time they had been employed as daily wagers and completed 240 days of service. However, their services stood terminated after the work of the project was over. This all happened in the year 1971-1972.

Subsequently, applications had been filed before the learned Tribunal time and again wherein the Tribunal issued certain directions that relief could not be granted in pursuance of the said directions. Petitioners again approached the Tribunal by filing Original Application No. 183 of 1997 which has been rejected. Hence this petition.  

Learned counsel for the petitioners has submitted that during the Indo-Pakistan war in 1971, petitioners had been appointed as Chowkidar on daily wages. They worked for 240 days in a calendar year, but when the project was over their services had been terminated. However, regularisation is being sought on the ground that earlier some persons who had worked for some period had been re-engaged after retrenchment and regularised, therefore same relief ought to have been granted by the Tribunal.

The issue of regularisation has been considered by the Hon'ble Apex Court time and again.

The question as to whether the services of certain employees appointed on ad hoc basis should be regularised relates to the condition of service. The power to prescribe the conditions of service can be exercised either by making Rules under the proviso to Article 309 of the Constitution of India or any analogous provision and in the absence of such Rules, under the instructions issued in exercise of its executive power. The Court comes into the picture only to ensure observance of fundamental rights and statutory provisions, Rules and other instructions, if any, governing the conditions of service. The main concern of the Court in such matters is to ensure the Rule of Law and to see that the executive acts fairly and gives a fair deal to its employees consistent with the requirements of Articles 14 and 16. It also means that the State should not exploit its employees nor should it seek to take advantage of the haplessness and misery of either the unemployed persons or the employees, as the case may be. As is often said, the State must be a model employer. It is for this reason, it is held that equal pay must be given for equal work, which is indeed one of the Directive Principles of the Constitution. It is for this very reason it is held that a person should not be kept in a temporary or ad hoc status for long. A perusal of the authorities would show that appointments are as a rule to be made in accordance with statutory rules, giving equal opportunity to all the aspirants to apply for the posts and following the prevalent policy of reservation in favour of Scheduled Castes/Scheduled Tribes and other backward classes. Whenever the employees are appointed on ad hoc basis to meet an emergent situation, every effort should be made to replace them by the employees appointed on regular basis in accordance with the relevant rules as expeditiously as possible. Where the appointment on ad hoc basis has continued for long and the State has made rules for regularisation,  case for regularisation of employee has to be considered in accordance with the said rules. Where, however, no rules are operative, it is open to the employees to show that they have been dealt with arbitrarily and their weak position has been exploited by keeping them on ad hoc for long spell of time. However, it is a question of fact whether in the given situation, they were treated arbitrarily. (Vide Dr. A.K. Jain Vs. Union of India, 1987 Supp SCC 497; Jacob M. Puthuparambil & Ors. Vs. Kerala Water Authority & Ors., (1991) 1 SCC 28; State of Haryana & Ors. Vs. Piara Singh & Ors., AIR 1992 SC 2130; J & K. Public Service Commission etc. Vs. Dr. Narinder Mohan & ors, AIR 1994 SC 1808; Er. Ramakrishnan & Ors. Vs. State of Kerala & Ors., (1996) 10 SCC 565; and Ashwani Kumar & Ors Vs. State of Bihar & Ors., AIR 1997 SC 1628).

In Khagesh Kumar Vs. Inspector General of Registration, U.P. & ors. , AIR 1996 SC 417, the Hon'ble Supreme Court did not issue direction for regularisation of employees who had been appointed on ad hoc basis or on daily wages after the cut off date, i.e., 1.10.1986 as was required by the provisions of U.P. regularisation of Ad hoc Appointment (On posts Outside the Purview of the Public Service Commission) Rules, 1979. The same view has been taken by the Supreme Court in Inspector General of Registration, U.P. & anr. Vs. Avdesh Kumar & ors., (1996) 9 SCC 217. Moreover, in the above referred cases it has been laid down that for the purpose of regularisation, various pre-requisite conditions are to be fulfilled, i.e., the temporary/as hoc appointment of the employee should be in consonance with the statutory rules and it should not be a back-door entry. The service record of the employee should be satisfactory; the employee should be eligible and/or qualified for the post at the time of his initial appointment. There must be a sanctioned post against which the employee seeks regularisation and on the said sanctioned post, there must be a vacancy. Moreover, regularisation is to be made according to seniority of the temporary/ad hoc employees. The regularisation should not be in contravention of the State Policy regarding reservation in favour of Scheduled Castes/Scheduled tribes and other backward classes and other categories for which State has enacted any Statute or framed rules or issued any Government Order etc.

Similar view has been reiterated by the Hon'ble Supreme Court in Union of India Vs. Bishamber Dutt, (1996) 11 SCC 341; and State of Uttar Pradesh Vs. U.P. Madhyamik Shiksha Parishad Shramik Sangh, AIR 1996 SC 708. In the case of State of Himachal Pradesh Vs. Ashwani Kumar, (1996) 1 SCC 773, the Apex Court held that if an employment is under a particular Scheme or the employee is being paid out of the funds of a Scheme, in case the Scheme comes to closure or the funds are not available, the Court has no right to issue direction to regularise the service of such an employee or to continue him on some other project, for the reason that "no vested right is created in a temporary employment."

In Prabhu Dayal Jat Vs. Alwar Sahkari Bhumi  Vikas  Bank, 1991 Lab.& IC 944, the Court rejected the case of an employee, for regularisation as his services  stood terminated on the ground that he had  been appointed  without any authorisation of law.

The question of regularisation does not arise by merely working for 240 days or any particular number of days, unless it is so long that his continuation on ad hoc basis becomes arbitrary as no such ad hoc employee can derive any benefit for working for particular number of days or even for years under the interim order of the Court. More so, his appointment should be directly in accordance with law. (Vide M.D. U.P. Land Development Corp. Vs. Amar Singh, AIR 2003 SC 2357; A. Umarani Vs. Registrar, Coop. Societies, (2004) 7 SCC 112; Pankaj Gupta Vs. State of J & K, (2004) 8 SCC 353 and Dhampur Sugar Mills Ltd. Bhola Singh, (2005) 2 SCC 470).

In Vindon T. Vs. University of Calicut (2002) 4 SCC 726 and  Mahendra L. Jain & Ors Vs. Indore Development Authority & Ors., (2005) 1 SCC 639, it has categorically been held by the Hon'ble Apex Court that the appointees appointed irregularly can be regularised but illegally appointed employees cannot be regularised. As illegal appointments are void ab initio being opposed to public policy and violative of Articles 14 and 16 of the Constitution, and all such authorities and instrumentalities which are State within the meaning of Article 12 of the Constitution, must give strict observance to the  mandate of the Constitution. Regularisation can never be claimed as a mater of right. A daily wager in absence of statutory provisions in this behalf cannot claim entitlement for regularisation.

In State of West Bengal & Ors. Vs.  Alpana Roy & Ors., (2005) AIR SCW 4920, the Hon'ble Supreme Court held that if someone's name is included in the list of unapproved employees for a long time, mere empanelment would not give any right of regularisation in service if the appointment at the initial stage had been made de hors the recruitment rules.

It is also settled legal proposition that a retrenched employee cannot claim the relief of regularisation unless his termination from service is found to be illegal. Thus, only an employee who is continuing in service for a long time is eligible for seeking such a relief. (Vide H.P. Housing Board Vs. Om Pal & Ors, AIR 1997 SC 2685 and Ramchander & Ors Vs. Additional District Magistrate & ors, (1998) 1 SCC 183).    

Thus, it is evident from the above settled legal proposition that a person who had been appointed on daily wages and worked for a period of 1 or 2 years, cannot claim regularisation in absence of any statutory provisions. He must possess the eligibility for the post on the date of initial appointment and the appointment should be made in consonance with the statutory provisions. The regularisation is not permissible ignoring the policy framed by the State providing for reservation in favour of certain classes. A retrenched employee cannot claim regularisation without asking for quashing his termination order. More so, regularisation may be either under a scheme framed by the employer or under the statutory provision framed by the State for this purpose.

In view of the above, we do not find any cogent reason to interfere with the well reasoned judgment and order of the learned Tribunal dated  10/3/1999. Writ petition stands dismissed.

07 .11.2005

SB

COURT NO. 34

CIVIL MISC. WRIT PETITION NO.11800 OF 1999

Ram Sagar & Ors.           -------------    Petitioners              

Versus.

Union of India & Ors.        -------------  Respondents

_________

Hon'ble Dr. B.S. Chauhan, J.

Hon'ble  Bharati Sapru, J.

(By Hon'ble Dr. B.S. Chauhan, J)

This writ petition has been filed against the judgment and order dated 10/3/1999 passed by the Central Administrative Tribunal, Allahabad Bench rejecting the application of the petitioners for re-engagement and regularisation.

This case is squarely covered by the judgment and order passed by this Bench in Writ Petition No. 14177 of 2001, Union of India & Ors Vs. Dukkhi Lal & Anr decided on 28/10/2005, wherein the same issue has been considered. Petitioners' case had been that at one time they had been employed as daily wagers and completed 240 days of service. However, their services stood terminated after the work of the project was over. This all happened in the year 1971-1972.

Subsequently, applications had been filed before the learned Tribunal time and again wherein the Tribunal issued certain directions that relief could not be granted in pursuance of the said directions. Petitioners again approached the Tribunal by filing Original Application No. 183 of 1997 which has been rejected. Hence this petition.  

Learned counsel for the petitioners has submitted that during the Indo-Pakistan war in 1971, petitioners had been appointed as Chowkidar on daily wages. They worked for 240 days in a calendar year, but when the project was over their services had been terminated. However, regularisation is being sought on the ground that earlier some persons who had worked for some period had been re-engaged after retrenchment and regularised, therefore same relief ought to have been granted by the Tribunal.

The issue of regularisation has been considered by the Hon'ble Apex Court time and again.

The question as to whether the services of certain employees appointed on ad hoc basis should be regularised relates to the condition of service. The power to prescribe the conditions of service can be exercised either by making Rules under the proviso to Article 309 of the Constitution of India or any analogous provision and in the absence of such Rules, under the instructions issued in exercise of its executive power. The Court comes into the picture only to ensure observance of fundamental rights and statutory provisions, Rules and other instructions, if any, governing the conditions of service. The main concern of the Court in such matters is to ensure the Rule of Law and to see that the executive acts fairly and gives a fair deal to its employees consistent with the requirements of Articles 14 and 16. It also means that the State should not exploit its employees nor should it seek to take advantage of the haplessness and misery of either the unemployed persons or the employees, as the case may be. As is often said, the State must be a model employer. It is for this reason, it is held that equal pay must be given for equal work, which is indeed one of the Directive Principles of the Constitution. It is for this very reason it is held that a person should not be kept in a temporary or ad hoc status for long. A perusal of the authorities would show that appointments are as a rule to be made in accordance with statutory rules, giving equal opportunity to all the aspirants to apply for the posts and following the prevalent policy of reservation in favour of Scheduled Castes/Scheduled Tribes and other backward classes. Whenever the employees are appointed on ad hoc basis to meet an emergent situation, every effort should be made to replace them by the employees appointed on regular basis in accordance with the relevant rules as expeditiously as possible. Where the appointment on ad hoc basis has continued for long and the State has made rules for regularisation,  case for regularisation of employee has to be considered in accordance with the said rules. Where, however, no rules are operative, it is open to the employees to show that they have been dealt with arbitrarily and their weak position has been exploited by keeping them on ad hoc for long spell of time. However, it is a question of fact whether in the given situation, they were treated arbitrarily. (Vide Dr. A.K. Jain Vs. Union of India, 1987 Supp SCC 497; Jacob M. Puthuparambil & Ors. Vs. Kerala Water Authority & Ors., (1991) 1 SCC 28; State of Haryana & Ors. Vs. Piara Singh & Ors., AIR 1992 SC 2130; J & K. Public Service Commission etc. Vs. Dr. Narinder Mohan & ors, AIR 1994 SC 1808; Er. Ramakrishnan & Ors. Vs. State of Kerala & Ors., (1996) 10 SCC 565; and Ashwani Kumar & Ors Vs. State of Bihar & Ors., AIR 1997 SC 1628).

In Khagesh Kumar Vs. Inspector General of Registration, U.P. & ors. , AIR 1996 SC 417, the Hon'ble Supreme Court did not issue direction for regularisation of employees who had been appointed on ad hoc basis or on daily wages after the cut off date, i.e., 1.10.1986 as was required by the provisions of U.P. regularisation of Ad hoc Appointment (On posts Outside the Purview of the Public Service Commission) Rules, 1979. The same view has been taken by the Supreme Court in Inspector General of Registration, U.P. & anr. Vs. Avdesh Kumar & ors., (1996) 9 SCC 217. Moreover, in the above referred cases it has been laid down that for the purpose of regularisation, various pre-requisite conditions are to be fulfilled, i.e., the temporary/as hoc appointment of the employee should be in consonance with the statutory rules and it should not be a back-door entry. The service record of the employee should be satisfactory; the employee should be eligible and/or qualified for the post at the time of his initial appointment. There must be a sanctioned post against which the employee seeks regularisation and on the said sanctioned post, there must be a vacancy. Moreover, regularisation is to be made according to seniority of the temporary/ad hoc employees. The regularisation should not be in contravention of the State Policy regarding reservation in favour of Scheduled Castes/Scheduled tribes and other backward classes and other categories for which State has enacted any Statute or framed rules or issued any Government Order etc.

Similar view has been reiterated by the Hon'ble Supreme Court in Union of India Vs. Bishamber Dutt, (1996) 11 SCC 341; and State of Uttar Pradesh Vs. U.P. Madhyamik Shiksha Parishad Shramik Sangh, AIR 1996 SC 708. In the case of State of Himachal Pradesh Vs. Ashwani Kumar, (1996) 1 SCC 773, the Apex Court held that if an employment is under a particular Scheme or the employee is being paid out of the funds of a Scheme, in case the Scheme comes to closure or the funds are not available, the Court has no right to issue direction to regularise the service of such an employee or to continue him on some other project, for the reason that "no vested right is created in a temporary employment."

In Prabhu Dayal Jat Vs. Alwar Sahkari Bhumi  Vikas  Bank, 1991 Lab.& IC 944, the Court rejected the case of an employee, for regularisation as his services  stood terminated on the ground that he had  been appointed  without any authorisation of law.

The question of regularisation does not arise by merely working for 240 days or any particular number of days, unless it is so long that his continuation on ad hoc basis becomes arbitrary as no such ad hoc employee can derive any benefit for working for particular number of days or even for years under the interim order of the Court. More so, his appointment should be directly in accordance with law. (Vide M.D. U.P. Land Development Corp. Vs. Amar Singh, AIR 2003 SC 2357; A. Umarani Vs. Registrar, Coop. Societies, (2004) 7 SCC 112; Pankaj Gupta Vs. State of J & K, (2004) 8 SCC 353 and Dhampur Sugar Mills Ltd. Bhola Singh, (2005) 2 SCC 470).

In Vindon T. Vs. University of Calicut (2002) 4 SCC 726 and  Mahendra L. Jain & Ors Vs. Indore Development Authority & Ors., (2005) 1 SCC 639, it has categorically been held by the Hon'ble Apex Court that the appointees appointed irregularly can be regularised but illegally appointed employees cannot be regularised. As illegal appointments are void ab initio being opposed to public policy and violative of Articles 14 and 16 of the Constitution, and all such authorities and instrumentalities which are State within the meaning of Article 12 of the Constitution, must give strict observance to the  mandate of the Constitution. Regularisation can never be claimed as a mater of right. A daily wager in absence of statutory provisions in this behalf cannot claim entitlement for regularisation.

In State of West Bengal & Ors. Vs.  Alpana Roy & Ors., (2005) AIR SCW 4920, the Hon'ble Supreme Court held that if someone's name is included in the list of unapproved employees for a long time, mere empanelment would not give any right of regularisation in service if the appointment at the initial stage had been made de hors the recruitment rules.

It is also settled legal proposition that a retrenched employee cannot claim the relief of regularisation unless his termination from service is found to be illegal. Thus, only an employee who is continuing in service for a long time is eligible for seeking such a relief. (Vide H.P. Housing Board Vs. Om Pal & Ors, AIR 1997 SC 2685 and Ramchander & Ors Vs. Additional District Magistrate & ors, (1998) 1 SCC 183).    

Thus, it is evident from the above settled legal proposition that a person who had been appointed on daily wages and worked for a period of 1 or 2 years, cannot claim regularisation in absence of any statutory provisions. He must possess the eligibility for the post on the date of initial appointment and the appointment should be made in consonance with the statutory provisions. The regularisation is not permissible ignoring the policy framed by the State providing for reservation in favour of certain classes. A retrenched employee cannot claim regularisation without asking for quashing his termination order. More so, regularisation may be either under a scheme framed by the employer or under the statutory provision framed by the State for this purpose.

In view of the above, we do not find any cogent reason to interfere with the well reasoned judgment and order of the learned Tribunal dated  10/3/1999. Writ petition stands dismissed.

07 .11.2005

SB

COURT NO. 34

CIVIL MISC. WRIT PETITION NO.11800 OF 1999

Ram Sagar & Ors.           -------------    Petitioners              

Versus.

Union of India & Ors.        -------------  Respondents

_________

Hon'ble Dr. B.S. Chauhan, J.

Hon'ble  Bharati Sapru, J.

(By Hon'ble Dr. B.S. Chauhan, J)

This writ petition has been filed against the judgment and order dated 10/3/1999 passed by the Central Administrative Tribunal, Allahabad Bench rejecting the application of the petitioners for re-engagement and regularisation.

This case is squarely covered by the judgment and order passed by this Bench in Writ Petition No. 14177 of 2001, Union of India & Ors Vs. Dukkhi Lal & Anr decided on 28/10/2005, wherein the same issue has been considered. Petitioners' case had been that at one time they had been employed as daily wagers and completed 240 days of service. However, their services stood terminated after the work of the project was over. This all happened in the year 1971-1972.

Subsequently, applications had been filed before the learned Tribunal time and again wherein the Tribunal issued certain directions that relief could not be granted in pursuance of the said directions. Petitioners again approached the Tribunal by filing Original Application No. 183 of 1997 which has been rejected. Hence this petition.  

Learned counsel for the petitioners has submitted that during the Indo-Pakistan war in 1971, petitioners had been appointed as Chowkidar on daily wages. They worked for 240 days in a calendar year, but when the project was over their services had been terminated. However, regularisation is being sought on the ground that earlier some persons who had worked for some period had been re-engaged after retrenchment and regularised, therefore same relief ought to have been granted by the Tribunal.

The issue of regularisation has been considered by the Hon'ble Apex Court time and again.

The question as to whether the services of certain employees appointed on ad hoc basis should be regularised relates to the condition of service. The power to prescribe the conditions of service can be exercised either by making Rules under the proviso to Article 309 of the Constitution of India or any analogous provision and in the absence of such Rules, under the instructions issued in exercise of its executive power. The Court comes into the picture only to ensure observance of fundamental rights and statutory provisions, Rules and other instructions, if any, governing the conditions of service. The main concern of the Court in such matters is to ensure the Rule of Law and to see that the executive acts fairly and gives a fair deal to its employees consistent with the requirements of Articles 14 and 16. It also means that the State should not exploit its employees nor should it seek to take advantage of the haplessness and misery of either the unemployed persons or the employees, as the case may be. As is often said, the State must be a model employer. It is for this reason, it is held that equal pay must be given for equal work, which is indeed one of the Directive Principles of the Constitution. It is for this very reason it is held that a person should not be kept in a temporary or ad hoc status for long. A perusal of the authorities would show that appointments are as a rule to be made in accordance with statutory rules, giving equal opportunity to all the aspirants to apply for the posts and following the prevalent policy of reservation in favour of Scheduled Castes/Scheduled Tribes and other backward classes. Whenever the employees are appointed on ad hoc basis to meet an emergent situation, every effort should be made to replace them by the employees appointed on regular basis in accordance with the relevant rules as expeditiously as possible. Where the appointment on ad hoc basis has continued for long and the State has made rules for regularisation,  case for regularisation of employee has to be considered in accordance with the said rules. Where, however, no rules are operative, it is open to the employees to show that they have been dealt with arbitrarily and their weak position has been exploited by keeping them on ad hoc for long spell of time. However, it is a question of fact whether in the given situation, they were treated arbitrarily. (Vide Dr. A.K. Jain Vs. Union of India, 1987 Supp SCC 497; Jacob M. Puthuparambil & Ors. Vs. Kerala Water Authority & Ors., (1991) 1 SCC 28; State of Haryana & Ors. Vs. Piara Singh & Ors., AIR 1992 SC 2130; J & K. Public Service Commission etc. Vs. Dr. Narinder Mohan & ors, AIR 1994 SC 1808; Er. Ramakrishnan & Ors. Vs. State of Kerala & Ors., (1996) 10 SCC 565; and Ashwani Kumar & Ors Vs. State of Bihar & Ors., AIR 1997 SC 1628).

In Khagesh Kumar Vs. Inspector General of Registration, U.P. & ors. , AIR 1996 SC 417, the Hon'ble Supreme Court did not issue direction for regularisation of employees who had been appointed on ad hoc basis or on daily wages after the cut off date, i.e., 1.10.1986 as was required by the provisions of U.P. regularisation of Ad hoc Appointment (On posts Outside the Purview of the Public Service Commission) Rules, 1979. The same view has been taken by the Supreme Court in Inspector General of Registration, U.P. & anr. Vs. Avdesh Kumar & ors., (1996) 9 SCC 217. Moreover, in the above referred cases it has been laid down that for the purpose of regularisation, various pre-requisite conditions are to be fulfilled, i.e., the temporary/as hoc appointment of the employee should be in consonance with the statutory rules and it should not be a back-door entry. The service record of the employee should be satisfactory; the employee should be eligible and/or qualified for the post at the time of his initial appointment. There must be a sanctioned post against which the employee seeks regularisation and on the said sanctioned post, there must be a vacancy. Moreover, regularisation is to be made according to seniority of the temporary/ad hoc employees. The regularisation should not be in contravention of the State Policy regarding reservation in favour of Scheduled Castes/Scheduled tribes and other backward classes and other categories for which State has enacted any Statute or framed rules or issued any Government Order etc.

Similar view has been reiterated by the Hon'ble Supreme Court in Union of India Vs. Bishamber Dutt, (1996) 11 SCC 341; and State of Uttar Pradesh Vs. U.P. Madhyamik Shiksha Parishad Shramik Sangh, AIR 1996 SC 708. In the case of State of Himachal Pradesh Vs. Ashwani Kumar, (1996) 1 SCC 773, the Apex Court held that if an employment is under a particular Scheme or the employee is being paid out of the funds of a Scheme, in case the Scheme comes to closure or the funds are not available, the Court has no right to issue direction to regularise the service of such an employee or to continue him on some other project, for the reason that "no vested right is created in a temporary employment."

In Prabhu Dayal Jat Vs. Alwar Sahkari Bhumi  Vikas  Bank, 1991 Lab.& IC 944, the Court rejected the case of an employee, for regularisation as his services  stood terminated on the ground that he had  been appointed  without any authorisation of law.

The question of regularisation does not arise by merely working for 240 days or any particular number of days, unless it is so long that his continuation on ad hoc basis becomes arbitrary as no such ad hoc employee can derive any benefit for working for particular number of days or even for years under the interim order of the Court. More so, his appointment should be directly in accordance with law. (Vide M.D. U.P. Land Development Corp. Vs. Amar Singh, AIR 2003 SC 2357; A. Umarani Vs. Registrar, Coop. Societies, (2004) 7 SCC 112; Pankaj Gupta Vs. State of J & K, (2004) 8 SCC 353 and Dhampur Sugar Mills Ltd. Bhola Singh, (2005) 2 SCC 470).

In Vindon T. Vs. University of Calicut (2002) 4 SCC 726 and  Mahendra L. Jain & Ors Vs. Indore Development Authority & Ors., (2005) 1 SCC 639, it has categorically been held by the Hon'ble Apex Court that the appointees appointed irregularly can be regularised but illegally appointed employees cannot be regularised. As illegal appointments are void ab initio being opposed to public policy and violative of Articles 14 and 16 of the Constitution, and all such authorities and instrumentalities which are State within the meaning of Article 12 of the Constitution, must give strict observance to the  mandate of the Constitution. Regularisation can never be claimed as a mater of right. A daily wager in absence of statutory provisions in this behalf cannot claim entitlement for regularisation.

In State of West Bengal & Ors. Vs.  Alpana Roy & Ors., (2005) AIR SCW 4920, the Hon'ble Supreme Court held that if someone's name is included in the list of unapproved employees for a long time, mere empanelment would not give any right of regularisation in service if the appointment at the initial stage had been made de hors the recruitment rules.

It is also settled legal proposition that a retrenched employee cannot claim the relief of regularisation unless his termination from service is found to be illegal. Thus, only an employee who is continuing in service for a long time is eligible for seeking such a relief. (Vide H.P. Housing Board Vs. Om Pal & Ors, AIR 1997 SC 2685 and Ramchander & Ors Vs. Additional District Magistrate & ors, (1998) 1 SCC 183).    

Thus, it is evident from the above settled legal proposition that a person who had been appointed on daily wages and worked for a period of 1 or 2 years, cannot claim regularisation in absence of any statutory provisions. He must possess the eligibility for the post on the date of initial appointment and the appointment should be made in consonance with the statutory provisions. The regularisation is not permissible ignoring the policy framed by the State providing for reservation in favour of certain classes. A retrenched employee cannot claim regularisation without asking for quashing his termination order. More so, regularisation may be either under a scheme framed by the employer or under the statutory provision framed by the State for this purpose.

In view of the above, we do not find any cogent reason to interfere with the well reasoned judgment and order of the learned Tribunal dated  10/3/1999. Writ petition stands dismissed.

07 .11.2005

SB

COURT NO. 34

CIVIL MISC. WRIT PETITION NO.11800 OF 1999

Ram Sagar & Ors.           -------------    Petitioners              

Versus.

Union of India & Ors.        -------------  Respondents

_________

Hon'ble Dr. B.S. Chauhan, J.

Hon'ble  Bharati Sapru, J.

(By Hon'ble Dr. B.S. Chauhan, J)

This writ petition has been filed against the judgment and order dated 10/3/1999 passed by the Central Administrative Tribunal, Allahabad Bench rejecting the application of the petitioners for re-engagement and regularisation.

This case is squarely covered by the judgment and order passed by this Bench in Writ Petition No. 14177 of 2001, Union of India & Ors Vs. Dukkhi Lal & Anr decided on 28/10/2005, wherein the same issue has been considered. Petitioners' case had been that at one time they had been employed as daily wagers and completed 240 days of service. However, their services stood terminated after the work of the project was over. This all happened in the year 1971-1972.

Subsequently, applications had been filed before the learned Tribunal time and again wherein the Tribunal issued certain directions that relief could not be granted in pursuance of the said directions. Petitioners again approached the Tribunal by filing Original Application No. 183 of 1997 which has been rejected. Hence this petition.  

Learned counsel for the petitioners has submitted that during the Indo-Pakistan war in 1971, petitioners had been appointed as Chowkidar on daily wages. They worked for 240 days in a calendar year, but when the project was over their services had been terminated. However, regularisation is being sought on the ground that earlier some persons who had worked for some period had been re-engaged after retrenchment and regularised, therefore same relief ought to have been granted by the Tribunal.

The issue of regularisation has been considered by the Hon'ble Apex Court time and again.

The question as to whether the services of certain employees appointed on ad hoc basis should be regularised relates to the condition of service. The power to prescribe the conditions of service can be exercised either by making Rules under the proviso to Article 309 of the Constitution of India or any analogous provision and in the absence of such Rules, under the instructions issued in exercise of its executive power. The Court comes into the picture only to ensure observance of fundamental rights and statutory provisions, Rules and other instructions, if any, governing the conditions of service. The main concern of the Court in such matters is to ensure the Rule of Law and to see that the executive acts fairly and gives a fair deal to its employees consistent with the requirements of Articles 14 and 16. It also means that the State should not exploit its employees nor should it seek to take advantage of the haplessness and misery of either the unemployed persons or the employees, as the case may be. As is often said, the State must be a model employer. It is for this reason, it is held that equal pay must be given for equal work, which is indeed one of the Directive Principles of the Constitution. It is for this very reason it is held that a person should not be kept in a temporary or ad hoc status for long. A perusal of the authorities would show that appointments are as a rule to be made in accordance with statutory rules, giving equal opportunity to all the aspirants to apply for the posts and following the prevalent policy of reservation in favour of Scheduled Castes/Scheduled Tribes and other backward classes. Whenever the employees are appointed on ad hoc basis to meet an emergent situation, every effort should be made to replace them by the employees appointed on regular basis in accordance with the relevant rules as expeditiously as possible. Where the appointment on ad hoc basis has continued for long and the State has made rules for regularisation,  case for regularisation of employee has to be considered in accordance with the said rules. Where, however, no rules are operative, it is open to the employees to show that they have been dealt with arbitrarily and their weak position has been exploited by keeping them on ad hoc for long spell of time. However, it is a question of fact whether in the given situation, they were treated arbitrarily. (Vide Dr. A.K. Jain Vs. Union of India, 1987 Supp SCC 497; Jacob M. Puthuparambil & Ors. Vs. Kerala Water Authority & Ors., (1991) 1 SCC 28; State of Haryana & Ors. Vs. Piara Singh & Ors., AIR 1992 SC 2130; J & K. Public Service Commission etc. Vs. Dr. Narinder Mohan & ors, AIR 1994 SC 1808; Er. Ramakrishnan & Ors. Vs. State of Kerala & Ors., (1996) 10 SCC 565; and Ashwani Kumar & Ors Vs. State of Bihar & Ors., AIR 1997 SC 1628).

In Khagesh Kumar Vs. Inspector General of Registration, U.P. & ors. , AIR 1996 SC 417, the Hon'ble Supreme Court did not issue direction for regularisation of employees who had been appointed on ad hoc basis or on daily wages after the cut off date, i.e., 1.10.1986 as was required by the provisions of U.P. regularisation of Ad hoc Appointment (On posts Outside the Purview of the Public Service Commission) Rules, 1979. The same view has been taken by the Supreme Court in Inspector General of Registration, U.P. & anr. Vs. Avdesh Kumar & ors., (1996) 9 SCC 217. Moreover, in the above referred cases it has been laid down that for the purpose of regularisation, various pre-requisite conditions are to be fulfilled, i.e., the temporary/as hoc appointment of the employee should be in consonance with the statutory rules and it should not be a back-door entry. The service record of the employee should be satisfactory; the employee should be eligible and/or qualified for the post at the time of his initial appointment. There must be a sanctioned post against which the employee seeks regularisation and on the said sanctioned post, there must be a vacancy. Moreover, regularisation is to be made according to seniority of the temporary/ad hoc employees. The regularisation should not be in contravention of the State Policy regarding reservation in favour of Scheduled Castes/Scheduled tribes and other backward classes and other categories for which State has enacted any Statute or framed rules or issued any Government Order etc.

Similar view has been reiterated by the Hon'ble Supreme Court in Union of India Vs. Bishamber Dutt, (1996) 11 SCC 341; and State of Uttar Pradesh Vs. U.P. Madhyamik Shiksha Parishad Shramik Sangh, AIR 1996 SC 708. In the case of State of Himachal Pradesh Vs. Ashwani Kumar, (1996) 1 SCC 773, the Apex Court held that if an employment is under a particular Scheme or the employee is being paid out of the funds of a Scheme, in case the Scheme comes to closure or the funds are not available, the Court has no right to issue direction to regularise the service of such an employee or to continue him on some other project, for the reason that "no vested right is created in a temporary employment."

In Prabhu Dayal Jat Vs. Alwar Sahkari Bhumi  Vikas  Bank, 1991 Lab.& IC 944, the Court rejected the case of an employee, for regularisation as his services  stood terminated on the ground that he had  been appointed  without any authorisation of law.

The question of regularisation does not arise by merely working for 240 days or any particular number of days, unless it is so long that his continuation on ad hoc basis becomes arbitrary as no such ad hoc employee can derive any benefit for working for particular number of days or even for years under the interim order of the Court. More so, his appointment should be directly in accordance with law. (Vide M.D. U.P. Land Development Corp. Vs. Amar Singh, AIR 2003 SC 2357; A. Umarani Vs. Registrar, Coop. Societies, (2004) 7 SCC 112; Pankaj Gupta Vs. State of J & K, (2004) 8 SCC 353 and Dhampur Sugar Mills Ltd. Bhola Singh, (2005) 2 SCC 470).

In Vindon T. Vs. University of Calicut (2002) 4 SCC 726 and  Mahendra L. Jain & Ors Vs. Indore Development Authority & Ors., (2005) 1 SCC 639, it has categorically been held by the Hon'ble Apex Court that the appointees appointed irregularly can be regularised but illegally appointed employees cannot be regularised. As illegal appointments are void ab initio being opposed to public policy and violative of Articles 14 and 16 of the Constitution, and all such authorities and instrumentalities which are State within the meaning of Article 12 of the Constitution, must give strict observance to the  mandate of the Constitution. Regularisation can never be claimed as a mater of right. A daily wager in absence of statutory provisions in this behalf cannot claim entitlement for regularisation.

In State of West Bengal & Ors. Vs.  Alpana Roy & Ors., (2005) AIR SCW 4920, the Hon'ble Supreme Court held that if someone's name is included in the list of unapproved employees for a long time, mere empanelment would not give any right of regularisation in service if the appointment at the initial stage had been made de hors the recruitment rules.

It is also settled legal proposition that a retrenched employee cannot claim the relief of regularisation unless his termination from service is found to be illegal. Thus, only an employee who is continuing in service for a long time is eligible for seeking such a relief. (Vide H.P. Housing Board Vs. Om Pal & Ors, AIR 1997 SC 2685 and Ramchander & Ors Vs. Additional District Magistrate & ors, (1998) 1 SCC 183).    

Thus, it is evident from the above settled legal proposition that a person who had been appointed on daily wages and worked for a period of 1 or 2 years, cannot claim regularisation in absence of any statutory provisions. He must possess the eligibility for the post on the date of initial appointment and the appointment should be made in consonance with the statutory provisions. The regularisation is not permissible ignoring the policy framed by the State providing for reservation in favour of certain classes. A retrenched employee cannot claim regularisation without asking for quashing his termination order. More so, regularisation may be either under a scheme framed by the employer or under the statutory provision framed by the State for this purpose.

In view of the above, we do not find any cogent reason to interfere with the well reasoned judgment and order of the learned Tribunal dated  10/3/1999. Writ petition stands dismissed.

07 .11.2005

SB


Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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