Delhi High Court
Jaidev S/O Shri Ganesh Lal vs Indira Gandhi National Open University ... on 11 October, 2002
Equivalent citations: 102(2003)DLT234
Author: Madan B. Lokur
Bench: Madan B. Lokur
JUDGMENT Madan B. Lokur, J.
1.The Appellant, in appeal under Clause X of the Letters Patent, challenges the correctness of a judgment and order dated 14th December, 2001 passed by a learned Single Judge of this Court in a batch of writ petitions.
The facts
2. The Appellant is said to be a graduate and a qualified Stenographer. Sometime in June/July, 1996 he allied for the post of a stenographer/typist with the Electronic Media Production Center (EMPC for short) of the Indira Gandhi National Open University (hereinafter called IGNOU). He was duly selected and joined the EMPC as a Junior Assistant cum Typist on 8th July, 1996. He says that he was not given any appointment letter but worked on daily wages. he continued working as a Junior Assistant cum Typist or a Stenographer, initially on daily wages and later, on a short-term contract basis, till 15th June, 1998 when the last contract came to an end. Even thereafter he continued working in the same post since he was expecting an extension of the contract. However, When he felt that this services might not be continued, he filed CW No. 3122 of 1998 in this Court praying, inter alia, for regularization of his services in the post of Stenographer or to continue his services as such till his services are regularized. The Appellant also prayed for grant of equal pay for equal work with effect from 11th November, 1996 when he was appointed as a Stenographer for the first time on a contract.
3. While opposing the writ petition, the Respondents averred in their counter affidavit that the requirement of a Junior Assistant-cum-Typist or a Stenographer was intermittent, irregular and not permanent. The contract with the Appellant having come to an end, it was not renewed. Generally explaining why the Appellant was initially appointed, it was stated that the EMPC, in its earlier avatar, was operating through temporary premises in Tughlakabad and Maidan Garhi. During the shifting period from the temporary premises to the present location, a considerable backlog of work had accumulated for about a year or so. Additionally, a few external works were also required to be handled during that period. To cope up with all this work, additional hands were taken in to complement the regular staff on a short term or temporary basis.
4. It was then stated that in 1997 a regular selection process was undertaken in terms of the recruitment rules for recruiting Stenographers. Offers were invited by issuing an advertisement on an all India basis. A written test and a skill test were conducted in July and September, 1997 respectively. Subsequently, complaints were received from some candidates about the written test and so an enquiry was instituted to look into the complaints. After a report was received pursuant to the enquiry, it was decided not to act on the basis of the tests conducted. To tide over the problems caused by the inability of the Respondents to make regular appointments, recruitment on a contract basis as a stop-gap arrangement was resorted to. It was under these circumstances that the Appellant was recruited without being subjected to any written or skill test.
5. Historically, the EMPC, a unit of IGNOU came into existence in March, 1996 with a functionally autonomous and professional structure. EMPC is engaged, inter alia, in the production of audio and video programs for different courses offered by IGNOU through the distance learning mode. It is also involved in the production and delivery of tele-tutorials.
In other words, it is not intended to function as a University in the traditional role that we normally understand.
6. Before the EMPC was established, the Vice-Chancellor of IGNOU appointed a committee on 21st February, 1995 to report on the optimum utilization of the educational media production facilities of IGNOU. The committee made certain recommendations regarding the personnel policy, which were discussed in the first meeting of the Management Committee of the EMPC on 9th April, 1996. As regards the organizational structure, it was noted as follows:-
"The Management Committee noted the details of proposed staff strength for the EMPC and accepted it (Appendix-2). The Committee was of the considered view that the entire operations of the EMPC should be totally computerized so as to ensure operational control with a sound MIS back up."
7. Appendix-2 gave a list of posts, the number of posts sanctioned in each category, the additional/proposed sanction, the number of posts filled up and to be filled up.
8. Another item on the agenda was to approve the proposal to upgrade the posts of Production Assistant, Cameraman, etc. into respective Group A position. In this regard, it was decided, inter alia, to upgrade 50% of the available posts to senior positions. As regards Production Assistants, it was decided that:-
"The Post of Production Assistant may not be abolished since the tasks performed by Production Assistants would continue to be there; and In a situation where there would be no incumbent Production Assistant, the EMPC may engage services from outside on contract and for specified periods."
9. The Minutes of the Management Committee of the EMPC were approved by the Board of Management of IGNOU in its 47th Meeting held on 17th May, 1996.
10. It was in this procedural background that the Appellant and others were initially recruited as daily wage or casual workers and later on a shorter contract as a stop-gap arrangement.
11. In their counter affidavit, the Respondents also stated that they do not now require any contractual staff and that the regular staff is adequate to meet the present requirement of work. It was said that as regards future expansion, IGNOU had appointed a Cadre Review Committee, which has since submitted its report The Cadre Review Committee (as stated in an affidavit filed in May, 2002) was to look into (i) the workload, (ii) the staffing pattern, present and future requirements, (iii) the qualifications for each post, (iv) promotional avenues for each post.
12. In an affidavit filed in February, 2002, it has been stated by the Registrar of IGNOU as follows:-
"It may further be stated that a review of cadres is expected to take place by the end of September, 2002. On such review, if any regular vacancies arise, which are required to be filled up, the process therefore shall be initiated thereafter."
13. As regards the post of Stenographer, it is stated in this affidavit as follows:-
"There are vacancies of Stenographer. The process for regular recruitment to the said post has already commenced. By the second week of February, 2002 advertisements inviting offers for the said posts of stenographer shall be published in leading newspapers. Needless to add, the said advertisement shall give the terms of appointment to the said posts. This shall satisfy the appeal of Shri Jaidev, LPA No. 17/2002."
14. As of now, therefore, the admitted position so far as the Respondents are concerned is that there are vacancies in the post of Stenographer. As regards other posts, the Cadre Review Committee has given its report, which will be considered by IGNOU. In another affidavit filed in February, 2002 while dealing with the post of Technicians it was stated by the Respondents that "The matter of assessment of work of Technicians was likely to be completed by September, 2002 and on such assessment, if any vacancies are required to be filled up the process shall be initiated thereafter."
Decision of the learned Single Judge
15. On the broad facts given above (except the affidavits filed before us), the learned Single Judge heard learned counsel for the parties and also perused the relevant records. He, thereafter, concluded that:
"...the methods of recruitment, as laid down in the said recruitment rules, was not followed while engaging the petitioners either on daily wage basis or on contract basis as against the aforesaid posts. Therefore, the only conclusion which is irresistible is that their initial appointment to the said posts was de hors the recruitment rules. When the petitioners were initially appointed they did not go through the rigour of the said recruitment rules prescribed and their suitability was considered only to the limited extent for the purpose of their daily wage/contract appointment."
16. As regards regularization of persons appointed de hors the recruitment rules, the learned Single Judge concluded:
"No person who is appointed de hors the rules can be ordered to be regularized straightaway without going through the rigours of the selection/recruitment process as laid down in the recruitment rules."
17. Later in the judgment, the learned Judge reiterated this in the following words:
"The consideration that a person appointed de hors the Recruitment Rules cannot be ordered to be straightaway regularized without following the rigorous (sic) of recruitment/selection is based on the pronouncements of the Supreme Court in a catena of decisions, reference to some of which is made herein before. That being the settled position of law, no deviation thereto is permitted and could be allowed."
18. The learned Single Judge also found that since all the writ petitioners had accepted their contractual appointment, which contained a clause that they would have no claim for a regular appointment, they were bound by the principle of waiver and estoppel. The writ petitioners, therefore, could not claim regularization. It was also held that nothing had been shown or produced to indicate that the conditions of the contract were void or arbitrary.
19. a key issue before the learned Judge was whether vacancies exist in the category of posts that the writ petitioners were concerned with and whether these posts were required to be filled up.
20. The learned Judge said that it could not be denied that vacancies did exist in respect of the concerned categories of posts. In arriving at this conclusion, the learned Judge placed reliance on Appendix-2 mentioned above.
21. However, the learned Judge accepted the view of the Respondents that it is open to them to assess "the quantum of work and fill up such vacancies as are commensurate with the load of work and requirement." In this regard, it was held that:
"The respondent/university is the best judge to decide whether any or all the vacant posts is/are to be filled up or not. The court cannot substitute the satisfaction of the recruiting agency and direct that all vacant posts have to be filled up irrespective of the fact whether the same is immediate need based or not. The respondent/university has taken a stand that in some projects only temporary hands are necessary, which is got done by offering a contract to an independent body, who engages their own personnel for doing the jobs of the nature being done by the petitioners herein. In the light of the said circumstances could the court direct that such projects should not be got done by the university through independent firm or body, but should be got done by filling up the vacant posts through the process of regularizing the services of the petitioners? The answer has to be in the negative, for the court cannot substitute and act as an appellate authority over the recruitment policy and satisfaction of the respondents."
22. In view of his conclusions, the learned Judge, held that:
(a) No direction could be issued to the Respondents to regularize the services of the writ petitioners without their going through the process of regular selection as laid down under the Recruitment Rules.
(b) Since some of the writ petitioners had worked with the Respondents for about 3 to 4 years, it was directed that the Respondents shall maintain a list of the writ petitioners and as and when it is decided to fill up the vacant posts, they will be entitled to apply for the same. In that event the applications of the writ petitioners will be considered in accordance with law giving due weight to their past experience and service rendered to the Respondent-University; and, in case any age relaxation is to be granted to any of the writ petitioners, the same shall also be granted to the extent of their service rendered in the University.
(c) In case the Respondents proceed to make appointments on a daily wage/ad hoc/contract basis against any of the posts held by the writ petitioners, they shall be considered first and appointments made strictly in accordance with their seniority. It is only if and when none of the writ petitioners are available for being appointed that the Respondents may engage other persons.
The appeal
23. Feeling aggrieved by the findings and directions of the learned Single Judge in the impugned judgment and order dated 14th December, 2001, some of the writ petitioners filed appeals before us. Apparently, all the writ petitioners are not in appeal. We have before us ten appeals being LPA Nos. 716-717 of 2001, LPA Nos. 13-18 of 2002, LPA No. 100 of 2002 and LPA No. 373 of 2000. The legal issues that arise in these appeals are identical and so they were heard together. There are some differences in the facts of each individual case such as the post held and the date of appointment, but that is not of much consequence.
24. Initially, we were inclined to limit the hearing to the question as to when the Respondents intend to issue an advertisement for filling up the vacancies on a regular basis in accordance with the rules. In fact, in some appeals a limited notice was issued to the Respondents. However, during the hearing of the appeals we felt it necessary to hear learned counsel on all aspects of the cases. This was agreed to by learned counsel. The parties thereafter filed additional affidavits.
25. To avoid having to go back and forth through various paper-books, it was decided to treat the present appeal as the lead case. Submissions were, therefore, made with reference to the affidavits and documents before us in this appeal, that it, LPA No. 17 of 2002.
26. We heard learned counsel for the parties on 9th, 10th, 11th and 23rd April, 13th, 15th and 28th May, 16th, 17th and 18th July, 2002 when we reserved judgment.
27. The broad facts concerning the Appellants before us can be conveniently appreciated from the following table:-
Name Initial appointment CW filed Deepak Sharma LPA No.716/2001 (Cameraman) 8.6.1998 3.9.1998 Suresh Poddar Alok Kumar Sharma Bhoopesh Kumar Veena Rani Gupta LPA No.717/2001 (Technicians ) 4.2.1997 29.4.1998 Sanjeev Katoch LPA No.13/2002 (Production Assistant) April, 1995 9.7.1998 Bhuvan Pant LPA No.14/2002 (Production Assistant) 26.5.1995 8.5.1998 Manoj Kumar Singh LPA No.15/2002 (Production Assistant) 17.1.1996
28.5.1998 Mohd.
Kausar LPA No.16/2002(Production Assistant) 25.6.1996 28.5.1998 Jaidev LPA No.17/2002 (Stenographer) 8.7.1996 8.7.1998 Mahua Santra LPA No.18/2002 (Production Assistant) 3.4.1998 30.6.1998 Chhatar Singh LPA No.100/2002 (Technical Assistant) 27.9.1995 May, 1998 Ram Pal 7.9.1999 LPA No.373/2002 (Attendant) 24.11.1994 Appointment of the Appellants
28. There are two aspects to the appointment of the Appellants. Firstly, whether their recruitment was procedurally correct and secondly, whether the Appellants meet the criteria laid down by the recruitment rules.
(i) Procedural aspect:
29. IGNOU is a statutory university set up under the Indira Gandhi National Open University Act, 1985 (for short the Act). Section 24 of the Act is of some consequence and it reads as follows:
"24. Statutes.- Subject to the provisions of this Act, the Statutes may provide for all or any of the following matters, namely:-
(a) to (c) xxx xxx xxx
(d) the appointment of teachers and other employees of the University, their emoluments and other conditions of service;
(e) to (l) xxx xxx xxx"
30. In terms of Section 25 of the Act, the first Statutes of the University are set out in Schedule-II to the Act. Paragraph 2(9)(iii) of the Statutes entitles the Vice-Chancellor of the University to make short term appointments for a period not exceeding six months at a time. This paragraph reads as follows:-
"2. Powers and functions of the Vice-Chancellor (1) to (8) xxx xxx xxx (9) The Vice-Chancellor shall have the following further powers, namely:-
(i) to (ii) xxx xxx xxx
(iii) to make short-term appointments for a period not exceeding six months at a time, of such persons as may be considered necessary for the functioning of the University;
(iv) xxx xxx xxx"
31. The appointment of the Appellants can be traced to these provisions. This was the submission of the Appellants and learned counsel for the Respondent did not bring to our notice any specific denial to this contention or suggest anything to the contrary. Indeed, it was not the contention of the Respondents that the initial recruitment of the Appellants was either illegal or irregular.
32. In the writ petition (paragraph 10) as well as in the appeal filed by the Appellants, it has been specifically averred that the "University has been making appointment on casual/contract basis for a short duration by using the power given under the statute." The Respondents have not denied this. It must, therefore, be accepted that the appointment of the Appellants was made, on a casual, daily or short-term contract basis by the Vice-Chancellor or at least by or under his authority, in exercise of powers conferred by paragraph 2(9)(iii) of the Statutes of the University. To this extent, no fault can be found in the initial appointment of the Appellants. Their initial entry into the service was not, therefore, a back-door entry nor was their retention for a short duration illegal or irregular.
(ii) Recruitment criteria:
33. Despite several days of hearing, we were not shown the recruitment rules for any of the posts with which we are concerned. That some recruitment rules exist is not in doubt. The Learned Single Judge makes a mention of the recruitment rules in the impugned judgment and order. The Respondents refer to the Recruitment and Promotion Rules, 1991 in paragraph 11 of the counter affidavit. Apparently, these rules provide for recruitment through an advertisement on an all India basis (and in appropriate cases) with a written test, skill test and interview.
34. But what is not clear is the eligibility criteria for recruitment to the posts with which we are concerned and whether the Appellants satisfied this eligibility criteria. It was not the case of the Respondents that the Appellants were not eligible for being recruited to the posts they held. Their case, which was accepted by the learned Single Judge, was only that the Appellants had not been recruited in accordance with the procedure prescribed by the recruitment rules for a regular selection. It is possible that their eligibility may or may not have been considered in the context of the nature of their engagement. But this is not to say that they were not eligible or did not meet the criteria for recruitment in accordance with the recruitment rules.
35. In the absence of the Respondents placing on record anything to the contrary, we have to proceed on the basis that the Appellants were initially appointed on a short-term basis, after the Vice-Chancellor was satisfied that they meet the eligibility requirements. This is regardless of their status as a daily wage or casual or contractual worker. Admittedly, however, the Appellants did not go through the prescribed selection procedure for a regular appointment.
36. The legality of repeated extensions of the contract with some of the Appellants was not argued before us. What was contended by learned counsel for the Appellants was that the repeated extensions proved that the work was of a perennial nature and that the services of the Appellants were actually required on a regular basis, rather than as a short-term measure. But, whether the Respondents could by-pass the regular selection procedure and repeatedly make short-term arrangements, was not addressed. We, therefore, refrain from expressing any opinion on this aspect except to say that it is this by-passing the regular selection procedure that is the genesis of the problem before us. If the Respondents had made regular selections at the appropriate time, the problem confronting us may not have seen the light of day.
37. But, be that as it may, we are required to address ourselves to the issue concerning the effect of continued short-term extensions of the contracts between the Appellants and the Respondents. However, before we do so, it must be appreciated that the services of the Appellants were initially required and this cannot be doubted. The staff strength of the EMPC as stated in Appendix-2 not only included the existing sanctioned posts but also additional/proposed sanctions. In some categories, the sanctioned posts had been filled up, but not in all. But, in all the categories of posts, the additional/proposed posts were in any event not filled up. The requirement for additional/proposed posts being accepted by the Management Committee of the EMPC and the Board of Management of IGNOU, it must be held that the appointment of the Appellants was made against sanctioned posts or in any case against the additional/proposed posts accepted by the Board of Management of IGNOU and which, we assume, had the necessary budgetary sanction.
Entitlement to regularization
38. Learned counsel for the parties cited several decisions on the entitlement, if any, that the Appellants may have for being regularized in the posts held by them for several years, in some cases, either on a casual basis or by repeated extensions of short-term contracts. Learned counsel mainly referred to and relied on five decisions of the Supreme Court, which we propose to discuss.
39. State of Haryana and Ors. v. Piara Singh and Ors., was a case concerning regularization of the services of the large number of employees working as ad hoc/temporary employees, members of work charged establishments, daily wagers, casual labour and those engaged temporarily in temporary schemes. These employees had been working as such for several years. The Supreme Court generally observed in paragraph 21 of the Report:
"Where a temporary or ad hoc appointment is continued for long the court presumes that there is need and warrant for a regular post and accordingly directs regularization."
40. The Supreme Court then discussed two of its earlier decisions having a bearing on the issues involved and the directions given therein for regularization in service. ( Dharwad Distt. P.W.D. Literate Daily Wage Employees Association v. State of Karnataka, and Jacob M. Puthuparambil v. Kerala Water Authority, ). Thereafter, in paragraph 25 of the Report, it was stated:
"As would be evident from the observations made and directions given in the above two cases, the court must, while giving such directions, act with due care and caution. It must first ascertain the relevant fats, 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."
41. The "due care and caution" advised by the Supreme Court was adumbrated in paragraph 33 of the Report in the following manner:
"Now coming to the direction that all those ad hoc/temporary employees who have continued for more than a year should be regularized, we find it difficult to sustain it. The direction has been given without reference to the existence of a vacancy. The directions in effect means that every ad hoc/temporary employee who has been continued for one year should be regularized 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) is record of service since his appointment is not satisfactory. These are in addition to some of the problems indicated by us in para 25, which would arise from giving of such blanket orders. None of the decisions relied upon by the High Court justify such wholesale, unconditional orders.
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 regularize 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 relief must be moulded in each case having regard to all the relevant facts and circumstances of that case. It cannot be a mechanical act but a judicious one. Judged from this standpoint, the impugned directions must be held to be totally untenable and unsustainable."
42. The Supreme Court then considered the schemes for regularization formulated by the Respondents in that case and passed appropriate orders. However, before parting with the case, the Supreme Court laid down certain "rules" which ought to be followed in such cases (paragraphs 44 to 51 read with paragraphs 25 and 33 of the Report).
43. The sum and substance of what has been held by the Supreme Court in these paragraphs is this:-
(i) The normal rule is that a regular recruitment should be made through the prescribed agency. Bug, exigencies of administration may sometimes call for an ad hoc or temporary appointment to be made. Even in such an eventuality, a requisition for recruitment should ordinarily be made to the employment exchange. If no candidate is then available, a published notice inviting applications should be made and applicants considered.
(ii) An ad hoc or temporary employee should be replaced by a regularly selected employee and not another ad hoc or temporary employee.
(iii) An unqualified person may be appointed only if no qualified person is available.
(iv) If an ad hoc or temporary employee is continued for "a fairly long spell" (say two or three years) his case must be considered for regularization. He should, however, be eligible and qualified according to the recruitment rules, his record should be satisfactory and his appointment should not be contrary to the reservation policy of the State.
(v) An ad hoc or temporary employee may be considered for regularization only if there is a vacancy available.
(vi) Entry into service of an ad hoc or temporary employee should not be a back-door entry. Regularizing such an employee would only result in encouraging unhealthy practices.
(vii) Generally, the appropriate course would be for each State to prepare a scheme for regularization. But, the relief must be moulded in each case depending on the facts and circumstances of that case.
44. Gujrat Agricultural University v. Rathod Labhu Bachar and Ors., (2001) 3 SCC 574 was a case which arose under the Industrial Disputes Act, 1947. But, some of the principles laid down by the Supreme Court in this case are of immense assistance in resolving the issues before us. While dealing with the question of regularization, the Supreme Court noted that a daily wage worker or an ad hoc appointee is engaged only for a short period or as a stop gap arrangement. Engaging a daily wage worker or an ad hoc appointee for several years for the financial gain of an employer, is an unfair labour practice. It was said that if, in the engagement of a daily wage worker or an ad hoc appointee, a pattern of engagement year after year becomes discernible, then the only option to en employer is to regularize such a worker. If there be a vacant post available, then the employer must fill it up with such a worker in accordance with the rules and if necessary by relaxing the qualifications. If no post exists, then the quantum of work should be assessed and an equivalent post created for the absorption of such a worker.
45. This is what the Supreme Court held in paragraph 17 of the Report:-
".....The main objection which was raised earlier and is raised before us, is that a person could only be regularized on any vacant post and if there be one he should be qualified for the same as per qualifications, if any, prescribed. Infact, the Tribunal has held that on the date of the award, most of the workmen had completed 10 years of their service. It is also well settled, if work is taken by the employer continuously from the daily-wage workers for a long number of years without considering their regularization for its financial gain as against employees' legitimate claim, has been held by this Court repeatedly as an unfair labour practice. In fact, taking work from a daily-wage worker or an ad hoc appointee is always viewed to be only for a short period or as a stopgap arrangement, but we find that a new culture is growing to continue with if for a long time, either for financial gain or for controlling its workers more effectively with a sword of Damocles hanging over their heads or to continue with favored ones in the cases of ad hoc employee withstalling competent and legitimate claimants. Thus, we have no hesitation to denounce this practice. If the work is of such a nature, which has to be taken continuously and in any case when this pattern becomes apparent, whey (sic) they continue to work for year after year, the only option to the employer is to regularize them. Financial viability, no doubt, is one of the considerations but then such enterprise or institution should not spread its arms longer than its means. The consequent corollary is, where work taken is not for a short period or limited for a season or where work is not of a part-time nature and if pattern shows that work is to be taken continuously year after year, there is no justification to keep such persons hanging as daily-rate workers. In such a situation a legal obligation is cast on an employer; if there be vacant post, to fill up with such workers in accordance with rules, if any, and where necessary by relaxing the qualification, where long experience could be equitable (sic) with such qualifications. If no posts exist then duty is cast to assess the quantum of such work and create such equivalent posts for their absorption."
46. The Supreme Court has referred to financial viability in the above passage. This was elaborated in subsequent paragraphs of the Report. However, since the Respondents have not pleaded or argued financial constraints, we are not delving into that aspect of the matter.
47. While dealing with relaxation of qualifications because of on-the-job experience the Supreme Court observed in paragraph 28 of the Report that daily-rate workers who have been working on their posts for a long number of years without complaint have a ground for relaxation of the eligibility condition. In paragraph 29 of the Report, the Supreme Court quoted a passage from Bhagwati Prasad v. Delhi State Mineral Development Corporation which reads as follows:
".....Practical experience would always aid the person to effectively discharge the duties and is a sure guide to assess the suitability. The initial minimum educational qualification prescribed for the different posts is undoubtedly a factor to be reckoned with, but it is so at the time of the initial entry into the service. Once the appointments were made as daily-rated workers and they were allowed to work for a considerable length of time, it would be hard and harsh to deny them the confirmation in the respective posts on the ground that they lack the prescribed educational qualifications."
48. Thereafter, in paragraph 30 of the Report the Supreme Court held that on the facts of the case and for the posts concerned, the prescribed qualification should not come in the way of regularization in view of the long experience of the employees.
49. Ashwani Kumar and Ors. v. State of Bihar and Ors., was a rather unusual case in that against 2250 sanctioned posts, about 6000 appointments were made without following any valid procedure and without budgetary sanction. On the question of regularizing these appointments and confirming the employees, the Supreme Court considered three categories of cases:
(i) The initial recruitment is unauthorized and is against a vacancy, which is not sanctioned, or existing, it was held that the question of regularization does not arise.
(ii) The initial recruitment is in accordance with the rules and regulations and against a sanctioned vacancy, it was held that if the appointment is on a daily wage basis or is an ad hoc appointment but the requirement is of a long duration and the appointment is continued from time to time and the services of such employees are required by the employer, then such employees ought to be regularized.
(iii) The initial recruitment suffers from a procedural flaw, but is not otherwise tainted or illegal and the recruitment is against an available vacancy, it was held that in such a case, the procedural irregularity may be waived and the services of the employee regularized.
50. Dealing with these three contingencies, the Supreme Court said in paragraphs 13 and 14 of the Report:-
"So far as the question of confirmation of these employees whose entry itself was illegal and void, is concerned, it is to be noted that question of confirmation or regularization of an irregularly appointed candidate would arise if the candidate concerned is appointed in an irregular manner or on ad hoc basis against an available vacancy which is already sanctioned. But if the initial entry itself is unauthorised and is not against any sanctioned vacancy, question of regularizing the incumbent on such a non-existing vacancy would never survive for consideration and even if such purported regularization or confirmation is given it would be an exercise in futility. It would amount to decorating a still-born baby. Under these circumstances there was no occasion to regularize them or to give them valid confirmation. The so-called exercise of confirming these employees, therefore, remained a nullity."
(paragraph 13 of the Report) "In this connection it is pertinent to note that question of regularization in any service including any government service may arise in two contingencies. Firstly, if on any available clear vacancies which are of a long duration appointments are made on ad hoc basis or daily-wage basis by a competent authority and are continued from time to time and if it is found that the incumbents concerned have continued to be employed for a long period of time with or without any artificial breaks, and there services are otherwise required by the institution which employs them, a time may come in the service career of such employees who are continued on ad hoc basis for a given substantial length of time to regularize them so that the employee concerned can give their best by being assured security of tenure. But this would require one precondition that the initial entry of such an employee must be made against an available sanctioned vacancy by following the rules and regulations governing such entry. The second type of situation in which the question of regularization may arise would be when the initial entry of the employee against an available vacancy is found to have suffered from some flaw in the procedural exercise though the person appointing is competent to effect such initial recruitment and has otherwise followed due procedure for such recruitment. A need may then arise in the light of the exigency of administrative requirement for waiving such irregularity in the initial appointment by a competent authority and the irregular initial appointment may be regularized and security of tenure may be made available to the incumbent concerned. But even in such a case the initial entry must not be found to be totally illegal or in blatant disregard of all the established rules and regulations governing such recruitment. In any case back-door entries for filling up such vacancies have got to be strictly avoided. However, there would never arise any occasion of regularizing the appointment of an employee whose initial entry itself is tainted and is in total breach of the requisite procedure of recruitment and especially when there is no vacancy on which such an initial entry of the candidate could ever be effected. Such an entry of an employee would remain tainted from the very beginning and no question of regularizing such an illegal entrant would ever survive for consideration, however competent the recruiting agency may be." (paragraph 14 of the Report)
51. Khagesh Kumar and Ors. v. Inspector General of Registration and Ors., dealt with the regularizing of Registration Clerks in the Registration Department of the Government of Uttar Pradesh.
52. The first question that arose before the Supreme court in that case was whether the appointment of the Petitioners therein to the post of Registration Clerk was in the nature of a regular appointment under the relevant rules governing appointments to the said post. This was answered in the negative. The next question considered was with regard to the regularization of those Petitioners in the post of Registration Clerk. The Supreme Court noted that in the State of U.P. the provisions for regularization are contained in the U.P. Regularization of Ad Hoc Appointments (On Posts Outside the Purview of the Public Service Commission) Rules, 1979. It was held that the services of the Petitioners before the Supreme Court can be regularized only in accordance with those Rules, and necessary directions were then given in that regard.
53. It was eventually urged before the Supreme Court by the Petitioners therein that even if they are not entitled to regularization, they should be given preference in appointment to the post of Registration Clerk whenever regular appointments are made. The Supreme Court held that the Petitioners before them were not entitled to claim preferential treatment in the matter of such appointments. Nevertheless, the Supreme Court directed that the Petitioners before them (and others similarly placed) be given one opportunity of being considered for regular appointment to the post of Registration Clerk and that they be given relaxation in the age requirement prescribed by the relevant rules. It was also directed that they be given weightage for their work experience and that the Subordinate Services Selection Commission shall frame suitable guidelines for that purpose.
54. Director, Institute of Management Development, U.P. v. Pushpa Srivastava (Smt.), was a case in which the Respondent was appointed on a contractual basis as a Research Executive. She worked as such from sometime in May, 1988 till July, 1990 when she resigned. Thereafter, she requested for continuation of her services and so she was appointed on a fresh contract as a Training Executive on an ad-hoc basis from 1st September, 1990 for six months. The Appellant decided to abolish some posts of Training Supervisor (Executive ?) and Research Executive. The Supreme Court did not find it necessary to decide who has the power to abolish the posts. But, the Supreme Court did consider the question whether she was entitled to regularization of her services (notwithstanding the abolition of the posts). The Supreme Court answered the question in the negative saying that her appointment was purely ad hoc and on a contractual basis for a limited period. Her right to remain in the post came to an end on the expiry of the contractual period. The Supreme Court distinguished Joseph Puthuparambil since the decision in that case turned on the interpretation of the rule considered therein.
55. Having discussed the "Big Five" cases cited before us, the principles that can be culled out from these decisions are as follows:-
(a) Normally, only a regular appointment should be made. [Piara Singh].
(b) If it is not possible to make a regular appointment, then a daily wage, ad-hoc or temporary appointment may be made. [Piara Singh].
But, it must be understood that such an appointment is only a short-term measure or a stop-gap arrangement. [Gujrat Agricultural University].
(c) If the exigencies of service require a daily wage, ad-hoc or temporary appointment to be made, even then due publicity should ordinarily be given for the recruitment through the employment exchange and thereafter, if necessary, by publication of a notice inviting applications. [Piara Singh].
(d) To the extent possible, only a qualified candidate should be appointed on a daily wage, ad-hoc or temporary basis. Of course, if a qualified candidate is not available, only then can an unqualified person be appointed. [Piara Singh].
(e) Since a daily wage, ad-hoc or temporary appointment is only a short-term measure or a stop-gap arrangement, such an appointee should be replaced only by making a regular appointment and not by another daily wage, ad-hoc or temporary appointee. [Piara Singh].
(f) If a daily wage, ad-hoc or temporary appointment continues for a fairly long period of say two or three years, then the presumption is that there is a need for a regular appointee. [Piara Singh]. This presumption is, of course, rebuttable. [Piara Singh].
(g) If no efforts are made to replace a daily wage, ad-hoc or temporary appointee with a regular appointment as postulated in paragraph (e) above for a fairly long period (say two or three years) then the presumption is that the employer is persisting with the daily wage, ad-hoc or temporary appointment for financial gain, which is unfair. [Piara Singh and Gujrat Agricultural University].
(h) If despite efforts, it is not possible to make a regular appointment for say two or three years (of if no efforts are made in this direction) then the daily wage, ad-hoc or temporary appointee should be considered for regularization, if there is a vacant post. Such an employee should, nevertheless be (i) eligible as per the recruitment rules, (ii) qualified as per the recruitment rules, (iii) having a satisfactory record and (iv) the appointment should not be contrary to the reservation policy of the State. [Piara Singh and Khagesh Kumar]. However, depending on the period spent on the job and the nature of the post, such an employee can still be considered for regularization by relaxing the age requirement (to the extent of the period spent on the job) and other qualifications, and if necessary by giving weightage for the work experience. [Gujrat Agricultural University and Khagesh Kumar].
(i) If there is no vacant post as postulated by paragraph (h) above, then an equivalent post should be created subject to (i) a valid rebuttal of the presumption referred to in paragraph (f) above, (ii) an assessment of the quantum of work available, (iii) financial constraints on the public exchequer and (iv) arrangements for dealing with administrative problems arising from, for example, an increase in the cadre strength. [Gujrat Agricultural University and Khagesh Kumar].
(j) If the procedures mentioned above are not adhered to at the stage of initial recruitment, then the daily wage, ad-hoc or temporary appointment is tainted and is a back-door recruitment and the appointment cannot be regularized. [Ashwani Kumar and Piara Singh].
(k) There may be cases where the procedures mentioned above are adhered to and yet some procedural flaw surfaces but which is not momentous enough to taint the initial recruitment, then such a procedural flaw may be waived or ignored. [Ashwani Kumar].
(l) An appointment on a short-term contract is governed by the terms of the contract. Such an appointment will come to an end on the contract period coming to an end. [Pushpa Srivastava]. This is, of course, subject to the emergence of a discernible pattern of the contractual appointment continuing unfairly for the financial gain of an employer. [Gujrat Agricultural University].
(m) The eventual relief to be given to a daily wage, ad-hoc or temporary appointee can be moulded, depending on the fact and circumstances of each case, but this is not dependent upon or relatable to the procedure mentioned above. [Piara Singh and Ashwani Kumar].
(n) The ideal situation would, of course, be where the State itself frames a proper scheme for regularization which would be applicable in all cases. [Piara Singh, Gujrat Agricultural University and Ashwani Kumar]. Apart from anything else, this would result in some uniformity in the matter of regularization and save enormous energy which is spent in avoidable litigation.
(o) On our part, we would add that at all times the decision of the State should be informed with reason, whether at the stage of initial recruitment of a daily wage, ad-hoc or temporary appointee or at the final stage of relaxing the age requirement and other qualifications.
56. The above "principles" are not exhaustive and have been culled out only to the extent necessarily for deciding the appeals before us.
57. Learned counsel for the parties cited several other cases before us, the decision in which is based on one or the other distillate arrived at by us. We propose to briefly deal with each of these cases.
58. Rattan Lal and Ors. v. State of Haryana and Ors., was a case where teachers were appointed on an ad-hoc basis against existing vacancies. They were subjected to a hire and fire policy before each summer vacation. The Supreme Court deprecated this and directed the filling up of the vacancies in accordance with the recruitment rules and also directed the State Government to sympathetically consider relaxing the maximum prescribed age limit.
59. Dr. Arundhati Ajit Pargaonkar v. State of Maharashtra and Ors., 1994 Supp (3) SCC 380 dealt with a lecturer in a Government college. The Appellant was appointed temporarily against a permanent post and continued as such for nine years without a break. She was denied regularization by the Supreme Court because she was not entitled to regularization under the Temporary Government Servants Extension of Permanency Resolution or the Temporary Government Services Regularization Rules, 1975. In reaching this conclusion, the Supreme Court relied on M.A. Haque v. Union of India, wherein it was said that:-
"... We cannot lose sight of the fact that the recruitment rules made under Article 309 of the Constitution have to be followed strictly and not in breach..."
60. Even on equitable considerations, the Supreme Court did not find it appropriate to give her the benefit of deemed regularization. This is what the Supreme Court said in paragraph 7 of the Report.
"Nor the claim of the appellant, that she having worked as Lecturer without break for nine years on the date the advertisement was issued she should be deemed to have been regularized appears to be well founded. Eligibility and continuous working for howsoever long period should not be permitted to overreach the law. Requirement of rules of selection through Commission cannot be substituted by humane considerations. Law must take its course. Consequently the appellant was not entitled to claim that she should have been deemed to have been regularized as she had been working without break for nine years."
61. In State of H.P. v. Suresh Kumar Verma and Ors., the Supreme Court adhered to the principle that recruitment rules have to be followed, that a back-door entry should not be legitimized and that a temporary employee cannot be substituted by another temporary employee. In paragraph 4 of the Report, it was said:-
"...The vacancies require to be filled up in accordance with the Rules and all the candidates who would otherwise be eligible are entitled to apply for when recruitment is made and seek consideration of their claims on merit according to the Rules for direct recruitment along with all the eligible candidates. The appointment on daily wages cannot be a conduit pipe for regular appointments which would be a back-door entry, detrimental to the efficiency of service and would breed seeds of nepotism and corruption. It is equally settled law that even for Class IV employees recruitment according to Rules is a precondition. Only work-charged employees who perform the duties of transitory nature are appointed not to a post but are required to perform the work of transitory and urgent nature so long as the work exists. One temporary employee cannot be replaced by another temporary employee."
62. The direction eventually given was that if the Respondents therein apply for any regular appointment, then "the State is directed to consider necessary relaxation of their age to the extent of their period of service on daily wages and then to consider their cases according to rules, if they are otherwise eligible."
63. Similarly, in C.S.I.R. and Ors. v. Dr. Ajay Kumar Jain, , the Supreme Court said that the recruitment rules have to be followed for the purposes of regularization of employees. Pushpa Srivastava was referred to in paragraph 18 of the Report in support of the conclusion stated in paragraph 17 thereof in the following words:-
"Employment under the Quick Hire Scheme was on contract basis. The respondent was not governed by the CSIR Service Rules, 1994 for recruitment of scientific, technical and support staff as he would not be appointed under those Rules. An appointment under the Quick Hire Scheme cannot be equated with regular appointment as per the relevant Recruitment Rules of CSIR against a sanctioned post. To be eligible for regularization, the respondent had to come within the relevant Rules. It is difficult to appreciate the directions issued by CAT in the circumstnaes of the case. A Pool Officer or a Scientist Fellow under the Quick Hire Scheme cannot continue to hold on to the job till superannuation. The respondent has referred to certain instances where scientists were appointed on permanent contractual posts by CSIR without following the selection procedure. If something wrong has been done in violation of the rules, we cannot use that as an example to perpetuate an illegality."
64. In Union of India and Ors. v. Dinesh Kumar Saxena and Ors., , the Supreme Court considered its earlier decisions rendered in Daily Rates Casual Labour v. Union of India, , Karnataka State Private College Stop-gap Lecturer Association v. State of Karnataka, and Dharwad Distt. PWD Literate Daily Wages Employees Association on the question of regularizing persons who have worked on a post continuously for several years and the options available to a Court while granting relief. In paragraph 15 of the Report it was said:-
"In all these cases work of a permanent or semi-permanent nature existed in the Government Departments concerned which was got done through casual employees at lower or fixed salaries. The very fact that these casual employees had continuously worked in the department concerned for long periods like 8 to 10 years in each of the above cases showed that there was enough work available in the department on a permanent or long-term basis which, the Court held, should be done through regular employment and not through engaging casual workers. In these circumstances, this Court directed either regularization of daily-rated workers or preparation of a scheme for the regularization of these workers in the department concerned. In the present case, however, the additional work which is available is periodic in nature, available only at the end of each decennial when census operations are carried out. The additional work lasts for a period of about 2 or 3 years. hence additional hands are required only for this periodical increase in work and while the work subsists. They are, therefore, engaged for a fixed period (during which the additional work exists) and they are paid a fixed salary. It is difficult to see how such employees can be regularized since there is no regular work available in the department for them....."
65. On the aspect of age relaxation and weightage for the experience gained while on the job, the Supreme Court in paragraph 18 of the Report said that:-
"...Ends of justice will be met if the Directorate of Census Operations, U.P. is directed to consider those respondents, who have worked temporarily in connection with 1981 and/or 1991 census operations and who have been subsequently retrenched, for appointments in any regular vacancies which may arise in the Directorate of Census Operations and which can be filled by direct recruitment, if such employees are otherwise qualified and eligible for these posts. For this purpose the length of temporary service of such employees in the Directorate of Census Operations should be considered for relaxing the age bar, if any, for such appointment. Suitable rules may be made and conditions laid down in this connection by the appellants. The appellants and/or the Staff Selection Commission may also consider giving weightage to the previous service rendered by such employee in the Census Department and their past service record in the Census Department for the purpose of their selection to the regular posts..."
66. Union of India v. Uma Maheshwari and Ors., concerned daily wage casual employees engaged over different periods for each year. On the question of requirement of work and regularizing such employees, it was said in Paragraph 4 of the Report:-
"...It is for the appellant to decide whether such manual work should be got done through casual workers or through TEXCO. If the decision is taken bona fide to improve efficiency, we cannot question it. Since the work earlier performed by the respondents is now divided between Data Processing Agencies and TEXCO, only a portion of the work is being handled by TEXCO. In these circumstnaes, it is difficult to conclude that the respondents should be continued only for doing the work now given to TEXCO. We have also not been shown any scheme framed by the appellant for regularization of casual workers. The appellant in the interest of efficiency and better handling of applications has divided the work between Data Processing Agencies which are professionals in this field and TEXCO which does the manual handling work. The latter is doing the work on a contract basis. In the absence of any scheme of regularization and in the absence of any regular work being available for the posts of which the respondents claim regularization, we do not see how the Tribunal could have granted any order directing regularization of the services of the respondents..."
67. Hindustan Shipyard Ltd. and Ors. v. Dr. P. Sambasiva Rao, was a case where the High Court had given directions for the regularization of some medical officers. Holding that the directions were contrary to the recruitment rules, the Supreme Court said in paragraph 10 of the Report:-
"We are unable to endorse the direction given by the High Court regarding regularization of the respondents-medical officers with effect from April 1, 1986. The process of regularization involves regular appointment which can be done only in accordance with the prescribed procedure. Having regard to the rules which have been made by the appellant-corporation, regular appointment on the post of medical officer can only be made after the duly constituted Selection Committee has found the person suitable for such appointment, Dr. P. Sambasiva Rao, though he had been working since 1976, was considered by the Selection Committee for regular appointment in the year 1981 and was not found suitable for such regular appointment. Dr. J. Sanjeeva Kumar and Dr. S. Prasada Rao were never considered by the Selection Committee for regular appointment. The fact that no regular selection has been made after their appointment on ad hoc basis does not mean that they are entitled to be regularized with effect from April 1, 1986. In view of the Rules prescribed by the appellant-corporation, regularization of the respondent medical officers on the post of medical officer can be made only after they are considered and found suitable for such appointment by a duly constituted Selection Committee. As a result of the direction for regularization given by the High Court, the requirement in the Rules regarding selection by a Selection Committee for the purpose of regular appointment on the post of medical officer has been dispensed with. This, in our opinion, was impermissible."
68. The Supreme Court referred to M.A. Haque and noted that the Court "had deprecated the practice of by passing of the Public Service Commission which would open a back door for illegal recruitment without limit."
69. The final direction given by the Supreme Court concerned age relaxation and the work performance of the Respondents therein. It was stated in paragraph 13 of the Report:-
".....The appellant-corporation is directed to constituted a Selection Committee in accordance with the relevant Rules for considering the matter of regularization of the respondent-medical officers on the post of medical officer. The said Selection Committee shall consider the claim of the respondent-medical officers for such regularization by applying the criteria laid down for appointment of medical officers on regular basis and it shall also take into account the record of performance of the respondent-medical officers while they were working on ad hoc basis with the appellant-corporation. In case, the respondent-medical officers are found to have crossed the age bar for regular appointment a relaxation should be made in that regard to enable them to be considered for regularization..."
70. Three other decisions of the Supreme Court were referred to by learned counsel but we find them inapplicable to the situation that we are dealing with.
71. Hindustan Steel Ltd. v. The Presiding Officer, Labour Court, was a case dealing with retrenchment under the Industrial Disputes Act, 1947. This is clearly inapplicable to the present controversy.
72. Shankarsan Dash v. Union of India, concerned itself with the right of a candidate to be appointed to a post if his name is included in the merit or select list. This is not the situation we are dealing with. But the view of the Constitution Bench expressed in paragraph 7 of the Report is of some importance in the context of vacancies not being filled up for whatever reason. This is what the Supreme Court said:-
"Unless the relevant recruitment rules so indicate, the State is under no legal duty to fill up all or any of the vacancies. However, it does not mean that the State has the license of acting in an arbitrary manner. The decision not to fill up the vacancies has to be taken bona fide for appropriate reasons..."
73. All India SC & ST Employees Association and Anr. v. A. Arthur Jeen and Ors., also dealt with the right to appointment of a candidate whose name is placed in a panel of selected candidates. The Supreme Court referred to and relied upon Shankarsan Dash to reject the contention of the Petitioners asking for a favorable decision.
74. A decision of this Court was also referred to during the hearing of the appeals. In Delhi State Industrial Development Corporation Ltd. v. J.K. Thakur, , one of the questions that arose for consideration was whether the Respondent, by reason of having worked for seven years in a daily wage arrangement and having discharged the duties of AG-III post, could be deemed to have been regularized on that post. This question was answered in the negative by the Division Bench which said, in paragraph 10 and 11 of the Report, as follows:-
"10. .....This is so for the simple reason that a daily wager cannot claim regularization as a matter of right or course because of having remained in engagement for few years unless any rules/circular/policy of the employer provide for such deeming regularization on completion of a specific period of engagement. In the absence of such provision, his services could be treated regularized only on passing of an appropriate order by the Competent Authority.
11. A daily wager only enjoys right of consideration for regularization any time and his participation in any test or interview in this regard was only a step forward and no more and a part of consideration process which by itself was not sufficient to earn such regularization as a matter of course. Regularization would take place only by an appropriate order passed by the Competent Authority and in the present case on (sic) such order was admittedly passed and respondent could not naturally be treated regularized on AG-III post or to hold that post."
Application of the legal principles
75. For applying the law laid down by the Supreme Court to the present appeal, it is essential to recall the factual matrix.
76. We have already held that the initial recruitment of the Appellants was not illegal or a back-door entry. It was not the case of the Respondents that the initial recruitment of the Appellants was, in any manner, irregular. It is correct that the Appellants did not go through the selection procedure as prescribed by the recruitment rules for a regular appointment, but their initial appointment was validly made by or under the authority of the Vice-Chancellor of IGNOU.
77. That there is a vacancy in the post of a Stenographer is not in doubt. The Respondents have admitted it in their affidavits including the affidavit filed in February, 2002. In fact, the Respondents wanted to recruit Stenographers on a regular basis in 1997 but could not do so in view of some complaints. The Respondents have also stated that efforts were made in February, 2002 to recruit Stenographers on a regular basis.
78. Since the initial recruitment of the Appellants was on a daily wage basis and later, on a contract basis and not on a regular basis as per the recruitment rules, no direction can be given to the Respondents to by-pass the requirement of the recruitment rules and regularize the services of the Appellants. It is imperative for them to undergo the regular selection procedure before they can be regularized. This is the mandate of various decisions of the Supreme Court and it has to be followed, otherwise they will steal a march over equally placed persons from the open market.
79. It is true that some of the Appellants have worked with the Respondents for several years. It is also true that regular vacancies exist in respect of the posts occupied by them. The nomenclature given to the employment of the Appellants is, in the context, irrelevant. But this, by itself, does not vest them with a right to be regularized in the posts occupied by them disregarding the recruitment rules. Their recruitment may have been, as suggested by learned counsel for the Appellants, with a view to exploit them financially. If so, then they deserve to be compensated financially or by giving them some preferential treatment. Regularizing their services may not be the appropriate answer to the problem. On the contrary, it may result in depriving others, some of whom might be worse off, from the opportunity of obtaining employment in accordance with established procedures.
80. Of the possible available choices, the Supreme Court has adopted the course of giving persons such as the Appellants some preferential treatment in the matter of obtaining regular employment. We see no reason to depart from this track, as indeed we cannot. Consequently, we cannot give any direction to the Respondents to regularize the service of the Appellants.
Relief
81. In so far as the Appellant Jaidev is concerned, the best that can be done is to permit him to participate in a regular selection for the post of a Stenographer with benefit of the period spent by him on duty with the Respondents, that is, from 8th July, 1996 till the date that he actually worked with the Respondents. This period will be set-off by the Respondents for the purposes of relaxing the age requirement laid down in the recruitment rules.
82. In case the Appellant Jaidev does not meet any other qualification for the post of a Stenographer, the Respondents shall waive the same in view of the experience gained by him on the job. If, however, he does meet the eligibility requirements, the Selection Committee shall give due weightage to his experience working on the job. How much weightage is to be given will be decided by the Selection Committee since it is not possible for us to lay down any precise guidelines in this regard or give any specific direction. We would, however, except the Selection Committee to be sympathetic and pragmatic while taking their decision.
83. In so far as all the other Appellants are concerned, the Respondents say that there are no vacancies in the posts held by them. The learned Single Judge has found to the contrary and the Respondents have not appealed against this finding. Consequently, all the other Appellants will also be treated in the same manner as the Appellant Jaidev.
84. However, we need to add a caveat here.The Respondents have said on affidavit that a cadre review is expected to take place by the end of September, 2002. If the cadre review has taken place or will soon take place fully and in all respect, then of course the Respondents as well as all the Appellants will be bound by and subject to the decision of the cadre reviewing authority. If the cadre reviewing authority concludes that the strength or number of posts with which we are concerned, has to be reduced, then the question of the Appellants going through the selection procedure for being regularized will not arise, if no vacancies are available for them consequent to the reduction in strength.
85. We expect the cadre reviewing authority to complete its review and taka a final decision in respect of the posts that we are concerned with, within four weeks. It should, in any case, take its final decision on or before 30th November, 2002 failing which the Respondents are directed to proceed with making regular appointments on the basis that there are sufficient vacancies to accommodate all the Appellants before us.
86. Subject to what we have said above, we sustain the directions given by the learned Single Judge in the impugned judgment and order.
Costs.
87. We expect some transparency in the functioning of the Respondents and definitely some can dour when a grievance is ventilated in a Court of law. We found that both were lacking in so far as the Respondents were concerned. As already mentioned, we were initially inclined to limit the scope of hearing in the appeals. But, the affidavits filed by the Respondents impelled us to hear the appeals more fully. In fact, on 24th April, 2002 we noticed some discrepancies in what was submitted before us. The discrepancies were in the stand of the Respondents in so far as the question of appointment to the post of Cameramen and Production Assistants was concerned. Consequently, we had to emphasize in our order that "in case the respondents have taken liberties with truth, it will have serious repercussions."
88. It is partly this conduct of the Respondents that prolonged the hearing of these appeals. It took up everybody's time and perhaps added to the expenses of the Appellants. We feel, therefore, that even though we have not granted the relief that the Appellants expected, they should be monetarily compensated for their troubles.
89. Accordingly, we direct the Respondents to pay within four weeks, and in any case before 30th November, 2002, costs of Rs. 7,500/- to each of the Appellants before us.
90. The appeals are disposed of in the terms given above.