Madras High Court
Union Of India (Uoi), Union Territory Of ... vs Ilango on 2 April, 2004
Equivalent citations: (2005)ILLJ343MAD, (2004)2MLJ482
Author: M. Karpagavinayagam
Bench: R. Jayasimha Babu, M. Karpagavinayagam
JUDGMENT M. Karpagavinayagam, J.
1. Since the issues involved in both the Writ Appeals and the Writ Petitions, filed by the Pondicherry Government and the former casual employees, are one and the same, the following common judgment is being rendered.
2. Ilango and 26 others filed Writ Petition Nos.503 to 528 and 542 of 1993, praying for a writ of certiorarified mandamus, to call for the common order dated 12.05.1992, passed by the Editor of Debates, Legislative Assembly Department, Government of Pondicherry, Pondicherry, the third respondent herein, quash the same and consequently direct the respondents to reinstate the petitioners in service with back wages and continuity of service.
3. Writ Petitions were allowed by the learned single Judge, by a common order dated 14.05.1996, thereby quashing the termination order dated 12.05.1992, with a further direction to the Pondicherry Government to give the petitioners all benefits, including regularisation of service, promotion etc. Aggrieved by the same, the Government of Pondicherry, has filed the above Writ Appeals Nos.695 to 721 of 1996, before this Court. The other petitioners, who are similarly placed with the writ petitioners in W.P.Nos.503 to 528 and 542 of 1993, filed applications before the Central Administrative Tribunal, Madras, seeking for quashing of the termination orders dated 20.07.1996; the same were dismissed by the Tribunal, by its order dated 22.08.1997, and, hence, they filed the Writ Petitions in W.P.Nos.13350 to 13363 of 1998 etc. before this Court.
4. When the Writ Appeals were taken up for disposal, it was brought to the notice of the Court that the same issue is pending in the Writ Petitions in W.P.Nos.13350 to 13363 of 1998 etc., filed by the other employees, against the Tribunal's order, confirming the termination orders. Therefore, this Court directed the Registry to post both the batches of Writ Appeals and Writ Petitions together, to enable this Court to dispose of the same by a common order. Accordingly, they are taken up together for final disposal.
5. The case of the petitioners in W.P.Nos.503 to 528 and 542 of 1993 before the learned single Judge, who are the respondents in these Writ Appeals and former employees in the Legislative Assembly Department of the Government of Pondicherry, is as follows :
"A large number of daily rated casual labourers were employed from time to time in the Legislative Assembly Department of the Government of Pondicherry. They were given salaries for the days they worked. They were assigned different types of work in different places in the Assembly, M.L.As.Hostel etc. They were appointed as daily rated casual labourers, by the Pondicherry Assembly Department, by the orders of various dates between June,1990 and March, 1991. They have put in a long continuous service. All of a sudden, their services were terminated by a cryptic order dated 12.05.1992. All the petitioners have put in more than 240 days of continuous service within a period of less than two years of their employment. The persons, who entered the service later were retained and the persons, who entered the service earlier were retrenched. Further, out of 56 persons, 13 were favoured with re-employment. Therefore, the wholesale orders of removal were made improperly, without application of mind and without giving any notice. Since they have put in a long continuous service, they are entitled to be regularised in the posts."
6. According to the Pondicherry Assembly, the appellant herein, the writ petitioners were employed as temporary daily rated casual labourers, as decided by the Speaker of the 8th Legislative Assembly; as per their appointment order, they are liable to be terminated at any time without notice; the new Speaker of 9th Legislative Assembly was elected and on the basis of the new Speaker's decision, the petitioners services were terminated, as their work is temporary in nature, and, hence, they were not entitled for regularisation.
7. The learned single Judge of this Court, rejecting the contention of the Pondicherry Assembly, allowed the Writ Petitions, giving a direction for reinstatement, regularisation, promotion etc. Hence, these Writ Appeals, by the Pondicherry Government and the Assembly.
8. We shall first deal with the Writ Appeals, filed by the Pondicherry Government, challenging the common order passed by the learned single Judge, through his common order dated 14.05.1996, quashing the termination orders dated 12.05.1992.
9. The learned single Judge, while allowing the Writ Petitions, quashing the termination orders and giving further directions, would give the following reasons:
(i) 56 persons, who were appointed by the third respondent on various dates, ranging from June,1990 and March,1991, were terminated on the very same day, by passing separate termination orders, without disclosing any reason,
(ii) each of the petitioners has put in more than 240 days of continuous service within a period of two years of their employment,
(iii) the post, at which the petitioners were appointed, remained unabolished and the necessity for the post is continuous and subsisting, which is evident from the fact that, on the very same day, the Editor of the Assembly appointed hand picked men of his choice,
(iv) the persons, who came to be appointed as daily rated casual labourers, subsequent to the appointment of the petitioners, were allowed to continue in service and the principle 'Last come, First go' was not observed, which is arbitrary,
(v) According to the Government Pleader, petitioners were removed for dereliction of duty, but, no opportunity was given to them to explain over the allegations levelled against them,
(vi) totally, 56 persons were removed on the very same day, out of which 13 persons were reemployed. Even though there were allegations against all the 56 persons regarding dereliction of duty, without any further enquiry, 13 persons were reemployed and the remaining persons were not reemployed, which is again an arbitrary discretion,
(vii) the senior most daily rated casual labourers were considered and they were appointed on permanent basis as and when vacancies arose. Several permanent vacancies arose, just before and after the removal of the petitioners from service, but the petitioners, being seniors in service, have not been considered for permanent appointment.
10. Challenging these reasons as unsound, Mr.T.Murugesan, learned Special Government Pleader, would submit that those reasons are not legally valid, for the reason that the engagement of persons in the Assembly by the Speaker on daily rated wages basis is not governed by any rules, as there is no cadre containing such posts, and the daily wages employees were not sponsored by Employment Exchange nor selected by any duly constituted committee; furthermore, they were not engaged against any regular posts on a definite scale of pay; there is no budgetary provision under the head "Salaries"; as such, the petitioners cannot claim for regularisation of their service and that since they were allowed to gain entry through back door by pick and choose method, they have to go the same way them came in.
11. On the other hand, Mr.G.Masilamani, learned Senior Counsel for the writ petitioners, would strenuously submit in justification of the order passed by the learned single Judge, that the petitioners have been in continuous service; they have put in more than 240 days of continuous service within a period of two years of their employment and that when the senior most daily rated employees were considered and appointed on permanent basis, the petitioners also must have been considered and appointed on permanent basis. However, at the end of his arguments, the learned Senior Counsel would submit, even assuming that the order of the learned single Judge, giving directions for regularisation, promotion etc., is not legally valid, this Court, out of sympathetic consideration, taking note of the fact that the petitioners were employed in the Assembly for a long period, they could be directed to be appointed afresh, even without any back wages and other attendant benefits.
12. We have given our anxious consideration to the rival contentions made by the learned counsel on either side and also gone through the records as well as the impugned order of the learned single Judge.
13. Both the counsel would cite a cart load of authorities, relevant of which, we shall refer to later.
14. Let us now see the copy of the appointment order, dated 22.06.1990, issued in favour of Ilango, one of the petitioners, which reads as follows:
"Thiru Illango is appointed as Daily rated casual labourer in the Legislative Assembly Department, Pondicherry, against the existing vacancy with effect from the...
He will be paid wages in accordance with the rates prescribed in G.O.Ms.No.32/90/F.3, dated 10.4.90, of the Finance Department, Pondicherry.
He is informed that the appointment is purely on daily wages basis and his services are liable to be terminated at any time without notice and without assigning any reason therefor.
Sd/-
(S.RAMAMOORTHY), Editor of Debates."
15. There is no dispute about the fact that other writ petitioners were also appointed under the orders, which are similar. The above order would indicate that (i) the petitioner is appointed by the Editor of Debates in the Legislative Assembly Department, as a daily rated casual labourer, (ii) his appointment is purely on daily wages basis and he will be paid wages in accordance with rates prescribed in G.O.Ms.No.32/90/F.3, dated 10.04.1990, of the Finance Department, Pondicherry, and (iii) his services are liable to be terminated at any time without notice and without assigning any reason therefor. The said three conditions would clearly indicate that the petitioner is only a temporary employee.
16. Let us now look at the termination order of Illango, which reads as follows :
"The service of Thiru Illango, Daily rated casual labourer of this Department, is terminated with effect from the afternoon of May,13,1992.
Sd/-
(S.RAMAMOORTHY), Editor of Debates"
Similar orders were passed on the same day for others as well.
17. A plain reading of the order of appointment as well as the order of termination would go to show that the appointment was made purely on temporary basis and the service was liable to be terminated at any time without notice and without assigning any reason and, accordingly, his service was terminated, giving no reason in the order. This would indicate that the termination order does not attribute any stigma against the said employee for termination.
18. But, the impugned order, passed by the learned single Judge, would show, that mainly on the ground urged by the counsel for the petitioners/employees that the petitioners have put in a long continuous service; existing posts were not abolished and the same are continuous and subsisting; the petitioners were shown discrimination over re-employment and there was no enquiry, even though dereliction of duty was attributed against them, the Writ Petitions were allowed, giving directions in favour of the employees.
19. Before adverting to the merits of these grounds, mentioned in the impugned orders, it would be proper to deal with the settled legal position, as determined by the Apex Court. First, we shall refer to the decisions cited by the learned Special Government Pleader, Pondicherry.
20. The Supreme Court, in (Madhya Pradesh Hasta Shilpa Vikas Nigam Limited v. Devendra Kumar Jain & Ors.), would observe as follows :
"In the case of appointment on temporary basis, a servant who is so appointed does not acquire any substantive right to the post, even though the post itself may be permanent and it is an implied term of such appointment that it may be terminable at any time and without notice."
21. In (Ramakrishna Kamat & Ors. v. State of Karnataka & Ors.), the Apex Court observed as follows :
"The appointment orders do not indicate that they were made either by zilla parishad or officers of the State Government against any sanctioned post. We repeatedly asked the learned counsel for the appellants on what basis or foundation in law the appellants made their claim for regularisation and under what rules their recruitment was made so as to govern their service conditions. They were not in a position to answer except saying that the appellants have been working for quite some time in various schools started pursuant to resolutions passed by zilla parishads in view of the government orders and that their cases need to be considered sympathetically.... We do not find it either just or proper to show any further sympathy in the given facts and circumstances of the case. While being sympathetic to the persons who come before the court the courts cannot at the same time be unsympathetic to the large number of eligible persons waiting for a long time in a long queue seeking employment. Hence, the petitioners are not entitled for regularisation."
22. In (Dr.(Mrs.) Chanchal Goyal v. State of Rajasthan), the Supreme Court held thus :
"Unless the initial recruitment is regularized through a prescribed agency, there is no scope for a demand for regularisation. It is true that an ad-hoc appointee cannot be replaced by another ad-hoc appointee; only a legally selected candidate can replace the ad-hoc or temporary appointee."
23. In (Madhyamik Siksha Parishad , U.P. v. Anil Kumar Mishra), the Apex Court held thus :
"We are unable to uphold the order of the High Court. There were no sanctioned posts in existence to which they could be said to have been appointed. The assignment was an ad hoc one which anticipatedly spent itself out.... The completion of 240 days' work does not, under that law, import the right to regularistion."
24. In (Ashwani Kumar and Others v. State of Bihar and Others), the Supreme Court observed as follows :
"If the initial entry itself is unauthorised and is not against any sanctioned vacancy, the question of regularising the incumbent on such a non-existing vacancy would never survive for consideration..... Whether they are posts or vacancies they must be backed up by budgetary provisions so as to be included within the permissible infrastructure of the Scheme."
25. In (State of U.P.and others v. Ajay Kumar), it was held by the Apex Court as follows :
"It is now settled legal position that there should exist a post and either administrative instructions or statutory rules must be in operation to appoint a person to the post. Daily-wage appointment will obviously be in relation to contingent establishment in which there cannot exist any post."
26. In (State of U.P. and Others v. Rajendra Kumar Singh and another), the Supreme Court held as under:
"Simply by completing the period of probation, an employee cannot claim to be made permanent until and unless his service record is taken into consideration and a positive decision is taken by the appointing authority for making him permanent.... a decision to terminate the temporary service of the respondent was taken and the order was passed without attaching any stigma. So, we do not think that such order would be held as illegal and a punishment in disguise."
27. Let us now refer to the decisions of the Supreme Court, cited by the learned counsel for the respondents, which are as follows:
(i) In (Anoop Jaiswal v. Government of India and another), it has been held thus :
"It is, therefore, now well settled that where the form of the order is merely a camouflage for an order of dismissal for misconduct, it is always open to the Court before which the order is challenged to go behind the form and ascertain the true character of the order."
(ii) In (Indra Pal Gupta v. The Managing Committee, Model Inter College, Thora), the Apex Court held thus :
"If the termination of service is founded on the right flowing from contract or the service rules, then prima facie, the termination is not a punishment and carries with it no evil consequences and so, Art. 311 is not attracted. Bur, even if the Government has, by contract or under the rules, the right to terminate the employment without going through the procedure prescribed for inflicting the punishment of dismissal or removal or reduction in rank, the Government may, nevertheless, choose to punish the servant and if the termination of service is sought to be founded on misconduct, negligence inefficiency or other disqualification, then it is a punishment and the requirements of Art. 311 must be complied with."
(iii) In (K.C.Joshi v. Union of India and others), it was held by the Apex Court as under :
"8.If the appellant was appointed on regular basis, his service cannot be terminated by one month's notice. If it is by way of punishment, it will be violative of the principles of natural justice, in that no opportunity was given to the appellant to clear himself of the alleged misconduct which never found its expression on paper but which remained in the minds of service. If it is discharge simpliciter, it would be violative of Art. 16...."
(iv) In (Jarnail Singh and Others etc. v. State of Punjab and others), the Supreme Court held as follows :
"The mere form of the order is not sufficient to hold that the order of termination was innocuous and the order of termination of the services of a probationer or of an ad hoc appointee is a termination simpliciter in accordance with the terms of the appointment without attaching any stigma to the employee concerned. It is the substance of the order i.e., the attending circumstances as well as the basis of the order that have to be taken into consideration."
(v) In (Daily Rated Casual Labour employed under P&T Department through Bhartiya Dak Tar Mazdoor Manch v. Union of India and others), the Apex Court observed as follows :
"India is a socialist republic. It implies the existence of certain important obligations which the State has to discharge....the managements and the Governmental agencies in particular should not allow workers to remain as casual labourers or temporary employees for an unreasonably long period of time.... It amounts to exploitation of labour."
(vi) In (State of Haryana and others v. Piara Singh and others), the Supreme Court held thus :
"For regularisation, the first pre-condition is that there must be a vacancy, whether permanent or termporary. Such a vacancy must either be existing or may be created but it must be there. There cannot be a direction for regularisation without a post or a vacancy and the Government cannot be directed to create posts without number. It is beyond the capacity of any Government in India to comply with such directions."
(vii) In A.I.R.1998 SUPREME COURT CASES 71 (Arun Kumar Rout and others v. State of Bihar and others), it was held by the Supreme Court as follows :
"If the initial appointment was illegal on account of not following the procedure for appointment, the incumbent obtaining appointment without following due procedure cannot claim as a matter of right to be regularised."
28. The conspectus of these decisions cited by both the counsel would clearly reveal various guidelines, to be taken note of, while deciding the issue raised in these cases, They are as follows :
(i) There should exist a post and either administrative instructions or statutory rules must be in operation to appoint a person to the post. Daily wage appointment will be in relation to contingent establishment, in which there cannot exist any post;
(ii) If the initial entry is not against any sanctioned post, the question of regularising the incumbent on such a non-existing post would never survive for consideration. Any post, which de hors the budgetary grant and a non-existing post or vacancy, would be outside the sanctioned scheme and would remain totally unauthorised;
(iii) When the order was passed on the decision taken by the employer to terminate the temporary service of the worker, without attaching any stigma, such order could not be held as illegal and as a punishment in disguise. However, where the form of the order is merely a camouflage for an order of dismissal of misconduct, it is open to the Court to go behind the form and ascertain the true character of the order;
(iv) For regularisation, the first pre-condition is that there must be a post or vacancy. There cannot be a direction by the Court for regularisation without a post or vacancy, merely because the daily rated employees have put in work for more than 240 days, as it is beyond the capacity of any Government in India, to comply with such direction; and
(v) If the initial appointment is illegal on account of not following the procedure for appointment, the incumbent, obtaining appointment without following the due procedure, cannot claim, as a matter of right, to be regularised.
29. In the light of the above guidelines, we shall deal with the issues cropped up in this case. At the outset, it shall be stated, that we are shocked to see that the main argument, that has been advanced by the learned Government Pleader, Pondicherry, before this Court i.e., non-existence of the post has not at all been put forth before the learned single Judge. The Secretary of the Legislative Assembly has himself filed an affidavit dated 01.08.2002 in the Writ Appeals, before this Court, admitting the said mistake and sought permission to raise additional grounds. His request is in the following words :
"I submit that in the counter affidavit filed to the writ petitions at the relevant facts relating to the process of engaging casual labourers and disengaging them have not been clearly brought out and that resulted in a finding in the impugned order to the effect:..."
30. The main thrust of the argument advanced before this Court by the learned Government Pleader is that the engagement of persons in the Secretariat by the Speaker on daily wages basis is not governed by any rules; there is no cadre containing any post; there is no post at all existing and it is the privilege of the Speaker to engage his own men and, on the termination of their office, these persons engaged contemporaneously have to quit and, as such, they are not engaged as against the existing posts or vacancies.
31. Unfortunately, this point was never argued before the learned single Judge. On the other hand, the learned single Judge passed the order, holding that sending out the temporary casual labourers without regularisation is illegal when there are posts already existing and these daily rated employees were posted as daily rated casual labourers in the said posts and they have put in more than 240 days of continuous service and even after the termination, the said posts remained unabolished and subsisting. The relevant portion of the finding in the impugned order, passed by the learned single Judge, is as follows :
"6..... From the particulars furnished in the Chart extracted above, it is seen that each of the petitioners has put in more than 240 days of continuous service within a period of less than two years of their employment. It would be relevant to refer here that the post at which the petitioners were appointed remains unabolished and the need and necessity for the post is perennial, continuous and subsisting. As a matter of fact, the third respondent has filled up all the posts on the same terms of their appointment, with hand picked men of their choice, after removing him and the other persons from service. This has not been denied by the respondents in the counter affidavit filed by them...."
32. The above finding rendered by the learned single Judge was mainly because the Pondicherry Government, through its Government Pleader, had failed to bring to the notice of the learned single Judge either orally or through counter that there were no posts existing and, as such, their claim for regularisation, in the posts not existing, cannot be made.
33. As a matter of fact, writ petitioners, before the learned single Judge, projected a common case to the effect that as casually engaged persons, they worked for two years and that there were posts, to which they were appointed and remained unabolished, even after they quit the same and that the men of the choice of the Speaker were allowed to occupy such posts and the principle 'Last come, First go' was not observed and, therefore, the orders of disengagement were discriminatory and arbitrary.
34. Though the writ petitions were contested by the Pondicherry Government through its Government Pleader, by contending that writ petitioners were appointed purely on daily wages basis as temporary casual labourers, at the instance of the Speaker and after the Speaker's period was over and on the decision by the new Speaker writ petitioners were terminated without notice, it is clear that the writ petitioners were not opposed on the ground of non-existence of the posts.
35. We have also gone through the counter affidavits, filed by the Government Pleader of Pondicherry, before the learned single Judge. Though there is a mention about the fact that the daily rated casual labourers/writ petitioners were not appointed through Employment Exchange, it was not specifically mentioned in their counter pointed out to the learned single Judge that there were no posts and, as such, regularisation could not be sought for the posts, which were not subsisting. Probably, this has necessitated the learned Government Pleader, Pondicherry, to file an affidavit before this Court, requesting this Court for permission to raise the same, as an additional ground.
36. Elaborating this point, the learned Government Pleader would submit that the engagement of daily rated casual labourers in the Secretariat is not governed by any recruitment rules and it is the privilege of the Speaker to engage his own men and on the termination of their service, these persons engaged also have to go out. It is further submitted that these daily wages employees were not sponsored by the Employment Exchange nor selected by any duly constituted committee nor it is in accordance with the procedure adopted by the Government Departments, while engaging casual labourers from among those sponsored by the Employment Exchange. It is again stressed by the Government Pleader that what is more essential in the situation is that the writ petitioners were not engaged against any regular posts or vacancies on a definite scale of pay, borne on regular establishment and there is no budgetary provision under the head 'Salaries'. The daily wages casual labourers in the Legislative Assembly/Secretariat were not sponsored by Employment Exchange nor selected by a duly constituted committee, after ascertaining their suitability for engagement, whereas in the Government Departments, engagement of casual labourers is being done by selection from among the candidates, sponsored by Employment Exchange. Thus, the casual labourers in the Legislative Assembly/Secretariat have gained entry through back door method.
37. On the basis of the above submissions, it is contended by the Government Pleader, Pondicherry, that the learned single Judge was in error in holding that there were posts, to which the petitioners were appointed; the said posts remained unabolished and that the need and necessity for the posts was perennial, continuous and subsisting; but, in fact, these persons were engaged through back door method and, therefore, they do not have any legal right to claim regular appointment, whatever may be the duration of their engagement.
38. Learned Senior Counsel for the respondents, in justification of the impugned order passed by the learned single Judge, opposed the argument of the learned Government Pleder, saying that though the daily wages casual labourers are of temporary appointments, the said job must be considered as a civil post, within the meaning of Article 311(1) of the Constitution of India.
39. The said contention of the learned Senior Counsel for the respondents, in our view, does not merit acceptance, in view of the settled law, propounded by the Supreme Court. As a matter of fact, the Supreme Court, in (Ramakrishna Kamat & Ors. v. State of Karnataka & Ors.), would clearly indicate when the appointment orders do not indicate that they were made by the authorities against any sanctioned posts, then, the persons, appointed on such appointment orders, are not entitled for regularisation. Though the learned Senior Counsel, as the final argument, would urge this Court that the respondents/employees' case could be sympathetically considered, in view of the fact that they were working for a long time, at least by giving fresh appointment, the sympathy cannot be shown, in view of the dictum laid down by the Supreme Court in the decision cited above, which runs as follows:
"....While being sympathetic to the persons who come before the court the courts cannot at the same time be unsympathetic to the large number of eligible persons waiting for a long time in a long queue seeking employment."
This is the exact answer for the final submission, made by the learned Senior Counsel.
40. When it is the case of the appellant, namely, the Government of Pondicherry that the writ petitioners' initial entry was unauthorised and they were not given the job as against the sanctioned post, which cannot be disputed by the counsel for the respondents, then, this Court cannot give such a direction for regularisation, promotion etc., even under sympathy.
41. Once we hold that the posts are non-existing or not subsisting, the question of termination without notice and without enquiry or the principle 'Last come, First go' would not arise, as they may not be the legal grounds to decide that the termination order is legal or not, especially, when the appointment order, as indicated above, would show that their job is purely temporary and they can be terminated at any time without notice and without assigning any reason. Had there been such post borne on regular establishment, there would have been recruitment rules framed under Article 309 of the Constitution of India, governing the method of recruitment to the post and prescribing the constitution of recruitment committee for making selection to the post. It cannot be debated that the regularisation of service of a person can be made only against the regular post, borne on regular establishment, having a definite scale of pay, for specified or permanent period and also there should be budgetary provision for meeting the salaries and other allowances of the incumbent of the post. In the absence of recruitment rules and sanctioned post and also the budgetary provision for meeting the salaries and other allowances of the incumbent of the post, how can this Court direct the State Government, to make regularisation of appointment in the posts, which are not existing ?
42. As observed by the Apex Court, the creation of the post is the prerogative of the Executive. It is the Executive that lays down the conditions of service, subject to the law, made by the appropriate legislature. This power to prescribe the conditions of service can be exercised either by making Rules under the proviso to Article 309 of the Constitution or by issuing rules/instructions, in exercise of its executive power. The Court comes into picture only to ensure observance of fundamental rights, statutory provisions, rules and other instructions, if any, governing the conditions of service. The main concern of the court 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. The Apex Court would caution the courts that the courts must, while giving such directions, act with due care and caution. It must first ascertain the relevant facts and must be cognizant of the several situations and eventualities that may arise on account of such directions. A practical and pragmatic view has to be taken, inasmuch as every such direction not only tells upon the public exchequer but also has the effect of increasing the cadre strength of a particular service, class and category.
43. The learned Government Pleader, Pondicherry, fairly admitted that many appointments have been made irregularly and unauthorisedly, in the sense that the candidates were neither sponsored by Employment Exchange nor selected by a committee nor were they appointed after issuing a proper advertisement, calling for applications. In short, it was a back door entry. When that is the factual situation, a direction to regularise such an appointment would only result in encouragement of an unhealthy practice.
44. As held by the Apex Court in (Delhi Development Horticulture Employees' Union v. Delhi Administration, Delhi and others), besides the fact that the petitioners cannot be directed to be regularised for the reasons given above, we may take note of the pernicious consequences to which the direction for regularisation of workmen on the only ground that they have put in work for 240 or more days, has been leading. Although there is Employment Exchange Act which requires recruitment on the basis of registration in the Employment Exchange, it has become a common practice to ignore the Employment Exchange and the persons registered in the Employment Exchanges, and to employ and get employed directly those who are either not registered with the Employment Exchange or who though registered are lower in the long waiting list in the Employment Register. The Supreme Court mandates that the Courts shall take judicial notice of the fact that such employment is sought and given directly for various illegal consideration including money. The employment is given first for temporary periods with technical breaks to circumvent the relevant rules, and is continued for 240 or more days with a view to give the benefit of regularisation knowing the judicial trend that those who have completed 240 or more days are directed to be automatically regularised. A good deal of illegal employment market has developed resulting in a new source of corruption and frustration of those who are waiting at the Employment Exchanges for years. Though already employed elsewhere, they join the jobs for better and secured prospects. That is why, most of the cases which come to the Courts are of employment in Government Departments, Public Undertakings or Agencies. Ultimately, it is the people who bear the heavy burden of the surplus labour. The other equally injurious effect of indiscriminate regularisation has been that many of the agencies have stopped undertaking casual or temporary works though they are urgent and essential for fear that if those who are employed on such works are required to be continued for 240 or more days have to be absorbed as regular employees although the works are time-bound and there is no need of the workmen beyond the completion of the works undertaken. The public interests are thus jeopardised on both counts.
45. It is noticed from the affidavit filed by the Secretary of the Assembly, that every time, when a new Speaker is elected, at his instance, several persons have been appointed as daily rated casual labourers. We have seen the chart produced by the Government Pleader, containing the names of Speakers and the number of persons appointed by them, which particulars are as follows :
------------------------------------------------------------------
Name of Speaker Period No.of persons Disengaged engaged on daily wages basis
------------------------------------------------------------------
1.Thiru G.Palaniraja 05.03.90 to 04.03.91 55
2.Thiru P.Kannan 04.07.91 to 14.05.96 133
3.Thiru V.M.C.Sivakumar 10.06.96 to 18.03.2000 7
4.Thiru A.V.Subramanian 24.05.2000 to 31.5.2001 27 20 (on 5.4.2001)
5.Thiru M.D.R.Ramachandran 11.06.2001 to till date 7
------------------------------------------------------------------
46. The above chart would indicate that one P.Kannan, former Speaker, who held office from the years 1991 to 1996, recommended for appointment of 133 persons and he stood first and that others were not inclined to beat him, as they recommended only less number of persons.
47. When the Secretary of the Assembly himself in the affidavit would state that the petitioners entry was a back door entry, there is no reason as to why the officials of the Legislature have to allow the back door to be opened still, to ensure such an entry. It is noticed that there are relevant provisions, consisting for framing of rules for appointment. Therefore, at least, in future, the Legislature should regulate, by framing proper rules for appointment of casual labourers, even for the appointment of temporary daily wages casual labourers to work in the Assembly, like that of the rules being applied to casual labourers in the Government Departments.
48. In view of the above discussion and the settled principles laid down by the Apex Court, we are to conclude that we are unable to sustain the impugned order of the learned single Judge, mainly on the reason that there are no sanctioned posts in existence, to which the respondents/employees could be said to have been appointed and mere completion of 240 days work does not, under any law, merit right to regularisation. We shall state, at the risk of repetition, that in this case, initial entry itself is unauthorised and is not against any sanctioned post or vacancy. Hence, the question of regularising the respondents, on such a non-existing post or vacancy, would never survive for consideration.
49. With the above observations, these Writ Appeals are allowed and the impugned common order, passed by the learned single Judge, is set aside.
50. Let us now deal with the Writ Petitions, filed by one Manoharan and others in W.P.Nos.10584,13350 to 13363,14441, 14296,14297,10549, 10570, 10584,13228 to 13234 and 13332 to 13341 of 1998.
51. These Writ Petitions have been filed by the writ petitioners as a batch, as against the common order passed by the Central Administrative Tribunal, Chennai, dated 22.08.1997, dismissing their applications, filed against the orders of termination. In these cases, the petitioners were appointed as daily rated casual labourers in the office of the Council of Ministers on various dates in the year 1992. They worked in the Ministers' Office for more than 1000 days. On 20.07.1996, the orders were issued by the respondent/State of Pondicherry, terminating the services of the petitioners. According to the applicants before the Tribunal, they are entitled to regularisation, as they worked in the office of the Council of Ministers for long number of months and, as such, the order of termination, without any notice, is arbitrary and violative of Articles 14, 16 and 311 of the Constitution of India.
52. The Tribunal, after considering the materials placed before it, dismissed the batch of applications. Hence, these Writ Petitions have been filed by the said Manoharan and others.
53. We need not go in detail, in view of the fact that similar issue, which has been decided in the above Writ Appeals, is the subject matter of these Writ Petitions as well. The difference between the impugned orders of termination in the Writ Appeals and the Writ Petitions is, the writ petitioners in the Writ Appeals were appointed on the recommendations of the Speaker, whereas the petitioners in these Writ Petitions were appointed on the recommendations of the Ministers concerned.
54. However, it is worthwhile to look into the orders of appointment and termination as well as the order of the Tribunal. Let us now refer to the appointment order, relating to Manoharan, which reads thus :
"OFFICIAL ORDER Sub: Office of the Council of Ministers, Pondicherry-
Establishment Daily Rated Casual labourers -
engagement order - Issued.
Ref: 1.G.O.Ms.No.33, dated 25.3.92 of the office of the Council of Ministers, Pondicherry.
2.Appliation dated 5-5-92 from Thiru N.Manoharan, received through the Office of the Chief Minister, Pondicherry.
3.Joining Report dt.11.5.92 of Thiru N.Manoharan.
...
In pursuance of the above, Thiru N.Manoharan, S/0.Nagamuthi, Eripakkam New Colony, Kariamanikampet & Post, Netapakkam Commune, Pondicherry is engaged as Daily rated casual labourer in the Office of the Council of Ministers, Pondicherry, with effect from 11th May 1992. (fore noon)
2.He is informed that this engagement will not confer any right on him for regular appointment in Government Service whatever be the duration of such appointment.
3.He will draw daily wages as per orders issued by Finance Department, Pondicherry, from time to time."
55. Now, we can look at the termination order dated 26.07.1996, which runs thus :
" OFFICE ORDER Sub : Office of the Council of Ministers, Pondicherry-
Estt. - Daily Rated Clerk/Driver/Peon/Watch and Ward/ Part-time Sanitary Assistant -Termination of Service-
Orders Issued.
Ref : O.O.No.2-1/OCM/92-2 dt.14.5.92 of O/o the Council of Ministers, Pondicherry.
****** In the reference cited, Thiru N.Manoharan was engaged as Daily Rated Casual Labourer with effect from 11.5.1992 in the Office of the Council of Ministers, as per the requirements of the Minister concerned to serve as personal staff. It was also mentioned therein that his engagement will not confer any right on him for regular appointment in Government Service whatever be the duration of such appointment and terminable at any time without any notice.
2.Since the Council of Ministers which has engaged the above Thiru N.Manoharan has vacated Office in view of the expiry of the tenure, it is not required to engage his service any more.
3.In the circumstances and in continuation of the Office Order cited, Thiru N.Manoharan in the Office of Council of Ministers, Pondicherry, is informed that his engagement in the Office will stand terminated with effect from the after-noon of 26th July, 1996."
56. These orders of appointment and termination would clearly indicate that the petitioners were appointed at the instance of the Ministers concerned. Since the Council of Ministers, which has engaged the petitioners, has vacated Office, in view of the expiry of the tenure, it was intimated that the petitioner was not required for service any more and, as such, he was terminated. As such, no regular procedure had been followed for recruitment of these petitioners and when the Ministers concerned vacated their office, the daily rated casual labourers, appointed by them, also have to vacate their duty.
57. It is contended by the learned Senior Counsel for the petitioners that as in the Writ Appeals, the petitioners have been in service for long number of days; as such, their services have to be regularised; the principle 'Last come, First go' had not been followed; some of the similarly placed and appointed persons were allowed to continue in service and, as such, the order of the Tribunal is liable to be set aside.
58. On going through the order of the Tribunal, it is noticed that the counsel for the petitioners laid stress on the decision rendered by this Court through the learned single Judge in W.P.Nos.503 to 528 of 1993, on the basis of which, regularisation was sought for. The Tribunal correctly held, observing that the decision rendered by the learned single Judge is not in consonance with the decision of the Supreme Court in the State of Gujarat and another v. P.J.Kampavat and others ((1992) 21 ATC 112), since it was not brought to the notice of the learned single Judge. The exact observation, made to the above effect by the Tribunal, is as follows :
"The other judgment relied on heavily by the learned counsel for the applicants is in W.P.No. 503 to 528 of 1993 etc. batch dated 14.5.1996 (A.ILANGO AND OTHERS VS. UNION OF INDIA AND OTHERS), Madras High Court. That was a case where Daily Rated Casual Labourers are employed in the Legislative Assembly Department, Government of Pondicherry, were terminated. The learned Judge, after extracting the copy of the order of appointment, considered the arguments of both sides and held that the orders of termination are bad in law. We are told that a writ appeal is pending against this order. The judgment of the Supreme Court which is reported in STATE OF GUJARAT AND ANR., V.P.J. KAMPAVAT AND ORS. (1992) 21 ATC 112 has not been brought to the notice of the learned single Judge.... With great respect to the learned Judge, we are not able to agree with the judgment of the Madras High Court in W.P.Nos.503 to 528 of 1993 etc. batch dated 14.5.1996 (A.ILANGO AND OTHERS VS.UNION OF INDIA)."
Further, the Tribunal also took into consideration of the principle laid down by the Supreme Court in the State of Haryana and others v. Piara Singh and others and also the Union of India and others v. Bishamber Dutt (1997 SCC (L&S) 478) and held that the petitioners, who were appointed on the recommendations of the Ministers concerned, had not entered into the service in accordance with the rules or through Employment Exchange and since they gained a back door entry, they have to go out through the same door, as the Ministers, at whose pleasure they were appointed, have vacated their office.
59. As elaborately discussed and found in the earlier paragraphs while dealing with the Writ Appeals, this Court is to hold that the petitioners are not entitled for regularisation, since their initial appointment was not against the sanctioned posts. As such, we do not find any error in the order of the Tribunal dated 22.08.1997. Hence, the Writ Petitions are dismissed.
60. In the result, Writ Appeals are allowed and Writ Petitions are dismissed. No costs. Consequently, the connected W.A.M.Ps. and W.M.Ps. are closed.