Anilkumar E.K vs State Of Kerala on 29 September, 2015

[Cites 20, Cited by 10]

Kerala High Court

Anilkumar E.K vs State Of Kerala on 29 September, 2015

Interference declined by the Kerala Administrative Tribunal in the O.As. filed by the petitioners seeking for a direction not to dispense with their service on expiry of the terms of the contract, by replacing another set of temporary hands (SC Promoters/Social Activists) initially engaged for a period of one year and were permitted to continue on renewal for different spells and for regularisation in service, is under challenge in O.P.(KAT)Nos. 125 of 2017 & connected cases 2 these Original Petitions. The nature of pleadings and proceedings is almost similar and so also are the grounds raised, as the basis for challenge. Heavy reliance is sought to be placed on the verdict passed by the Apex Court in State of Haryana and others vs. Piara Singh and others ( [(1992) 4 SCC 118 = AIR 1992 SC 2130] and also paragraph 53 of the verdict passed by the Constitution Bench of the Apex Court in State of Karanataka vs. Umadevi [(2006) 4 SCC 1], besides some other judgments as well.

2. The O.As filed before the Tribunal were considered together and the prayers were rejected, however intercepting with one of the conditions in the notifications issued for fresh selection, to the extent it stipulated that persons who were continuing in service beyond 'eight years' will not be considered under any circumstance. The Tribunal held that it was in violation of the constitutional mandate of Article 16(1) in relation to the equal opportunity of employment and that the respondents were bound to consider them as well, if they satisfied the requirements in relation to the qualification and age factor. O.P.(KAT)Nos. 125 of 2017 & connected cases 3

3. O.A. No.881 of 2015 was taken as the lead case by the Tribunal and as such, the Original Petition arising therefrom, i.e. O.P.(KAT)192 of 2017, is treated as the lead case before this Court. The parties and proceedings are referred to as given therein, except where it is separately adverted to, with reference to the facts and figures and the context involved.

4. Heard Mr. Kaleeswaram Raj, the learned counsel for the petitioners in the lead case i.e. O.P.(KAT)Nos.192 of 2017 and connected cases; Mr.S.Sanal Kumar, the learned counsel who appeared for the petitioners in O.P.(KAT)Nos.125 of 2017 and connected cases, Mr. P. Nandakumar, the learned counsel for the petitioners in O.P(KAT)Nos.126 of 2017 and connected cases and the learned lawyers for others as well; besides the learned Govt. Pleader appearing for the State.

5. It came to the notice of the Government that various welfare measures evolved by the Government for the upliftment of the Scheduled Castes were not actually reaching the intended target groups among the Scheduled Castes and Scheduled Tribes, when the Government felt the need to educate individuals from O.P.(KAT)Nos. 125 of 2017 & connected cases 4 among the Scheduled Castes and Scheduled Tribe communities to ensure the participation of the target group as well, to provide transparency in the implementation of the various projects. Based on the Scheme suggested by the Planning Board, the Government started appointing 'SCP Co-ordinators' and 'Social Activists' from the Scheduled Caste/Scheduled Tribe Communities, as evident from Annexure A1 Government Order dated 16.03.2001, which has consolidated the guidelines issued as per various Government orders issued during the period 1998-2000 in this regard. It was accordingly, that the petitioners also came to be selected and engaged along with other similar persons, after giving training on the job requirement for a few days. The persons engaged as SCP Coordinators and Social Activists in the Panchayats, Municipalities and Corporations were stated as eligible to draw an honorarium of Rs.2000/- and they were to be within the age group of 18-35 years. It was specifically stipulated that the engagement would be purely temporary and that they would not be eligible for regularisation in future, besides pointing out that the expenditure for payment O.P.(KAT)Nos. 125 of 2017 & connected cases 5 of honorarium was to be met from the amount set apart for the House Construction Scheme.

6. As per Annexure A3 order dated 20.08.2001, the Government stipulated new norms and guidelines for selection, whereby the minimum educational qualification was prescribed as Degree, and instead of their nomenclature as SCP Coordinators, they would be renamed as 'SCP Promoters'. It was also pointed out that the Social Workers belonging to Scheduled Castes, who were working among the Scheduled Castes for their Welfare and progress would also be considered and in their case, they needed to have only the knowledge of reading and writing. The persons appointed as SC Promoters from Social Workers were never to exceed 25% of the total number of SC Promoters and that the appointment would be for a contract period of one year.

7. The petitioners have pointed out that the initial period of contract was extended in their case and they were being selected and appointed again, on similar terms, virtually renewing the tenure and many of them had completed more then 8 or 9 years. It was also pointed out that they were discharging their duties O.P.(KAT)Nos. 125 of 2017 & connected cases 6 with utmost commitment and devotion and that no disciplinary action was taken against them at any point of time, who, by virtue of the long tenure had acquired rich experience and were having an acceptable position among the members of the Community for whose benefit, they were identified and deployed. While so, Annexure-A17 Government Order was issued on 24.12.2014 stipulating revised norms and conditions for selection as SC Promoters . One of the conditions was that, those who had more than 8 years' of engagement will not be considered for fresh selection and that the upper age limit would be fixed as 50 years, in the case of persons who were to be appointed in the 10% quota allotted to the persons already working as Social Workers. This made many of the petitioners to challenge Annexure A17 on various grounds. Meanwhile, the claim putforth by the petitioners for regularisation before the Government, which was directed to be considered as per different orders in different O.As, came to be considered and rejected by the Government as per Annexure A18 and A19, which were also sought to be challenged in the said circumstance. It was O.P.(KAT)Nos. 125 of 2017 & connected cases 7 accordingly, that the O.A. was filed mainly with the following prayers:

"i) to set aide Annexure A17, A18 and A19 as unjust and unsustainable

ii) to direct the respondent to evolve a scheme for retaining the applicants in service with continuity in service and reasonable wages.

iii) to direct the 1st respondent to pass orders evolving a scheme for retaining the applicants in service with continuity in service and reasonable wages;

iv) to direct the respondents to refrain from implementing Annexure A17, A18 and A19 against the applicants by which they are proposed to be terminated from service on joining of fresh hands in the post of SC Promoters

v) to pass such other reliefs that the Hon'ble Tribunal deem fit in the facts and circumstances of the case."

8. The respondents sought to oppose the reliefs sought for, also challenging the very maintainability of the O.As. It was also pointed out that by virtue of the law declared by the Constitution Bench of the Apex Court in Umadevi's case and such other verdicts, the petitioners/applicants were not having any right to continue on expiry of the tenure of the contract period and that no right of regularisation could be conferred upon them; more so when there was no sanctioned post and that they were engaged only for the specific purpose, for the specific period and under a O.P.(KAT)Nos. 125 of 2017 & connected cases 8 specific Scheme, who cannot travel beyond the same.

9. After hearing both the sides, the Tribunal answered the question of maintainability of the O.A. in favour of the petitioners/applicants and against the respondents. However, in respect of the contentions putforth based on the dictum in State of Haryana and others vs. Piara Singh and others [(1992) 4 SCC 118 = AIR 1992 SC 2130] that, one set of temporary employees cannot be replaced by another set of temporary hands and also as to the scope of the verdict passed by the Supreme Court in Umadevi's case, the position was answered against the petitioners/applicants holding that it was not correct or sustainable and that they could not be regularised under any circumstance. The Tribunal, however held, as per Ext.P1 common verdict, that the stipulation contained in Annexure A17 that persons continuing for more than 8 years would not be considered, was arbitrary, having no nexus with the object and in violation of principle as to the equal opportunity. Hence it was interdicted, holding that they were also to be considered, if they otherwise came within the parameters in O.P.(KAT)Nos. 125 of 2017 & connected cases 9 relation to the qualification and age requirement. The said verdict, to the extent it was decided against the petitioners, is under challenge on various grounds as aforesaid.

10. The matter was heard exhaustively and the submissions made across the Bar from both the sides were subjected to meticulous analysis . As pointed out already, there is no dispute with regard to the sequence of events and the factual position dealt with by the Tribunal. The crux of the contentions is that the petitioners, having engaged after a due process of selection and were continuing in service for quite long, cannot be sent out, to be replaced by another set of temporary hands and can be replaced only by appointing regular hands, in view of the law declared by the Apex Court in State of Haryana and others vs. Piara Singh and others(cited supra). It is also pointed out that by virtue of the observation and direction given by the Apex Court in Umadevi's case ( paragraph 53), the petitioners are entitled to be considered for regularisation, which benefit shall not be denied under any circumstance. Reliance is also sought to be placed on some other verdicts as well, including O.P.(KAT)Nos. 125 of 2017 & connected cases 10 the decision in Mohd. Abdul Kadir and another vs. Director General of Police, Assam [(2009) 6 SCC 611) and State of Jammu and Kashmir vs. District Bar Association, Bandipora [(2017) 3 SCC 410], apart from the other verdicts as projected before the Tribunal and taken note of in paragraph 11 and elsewhere of Ext.P1 verdict.

11. The basic question to be considered is whether the Tribunal has gone wrong in any manner while applying the correct legal position to the given set of facts and circumstances, which alone comes within the scope of scrutiny before this Court in exercise of supervisory jurisdiction under Article 226 of the Constitution of India. In the endeavor made by the Tribunal to have a proper analysis of the facts and figures, the first question considered, as noted in paragraph 14 of Ext.P1, was whether there were sanctioned posts to have appointed the petitioners/applicants. There is no case for any of the petitioners that they were appointed against any sanctioned posts or to any post carrying a scale of pay; more so when the engagement was to be in different local authorities (Grama Panchayat/ O.P.(KAT)Nos. 125 of 2017 & connected cases 11 Municipality/Corporation). It is also evident from the pleadings and proceedings, as noted by the Tribunal in Ext.P1, that the scope of engagement was clearly revealed in the notification issued; that it was only for a specific term and it would not confer any right of regularisation, nor will it enable the petitioners/applicants to draw any salary, but for the limited honorarium for the service extracted. The job requirement also revealed that the task was mainly to educate and make the targeted group to be aware of the various welfare measures being brought about by the Government and to ensure that the same reached the targeted hands. But for the duty to attend the meetings convened on one or two days, the rest of the period was to be spent as 'field duty' interacting with the beneficiary group. There was no bar in doing any other work by the petitioners/applicants simultaneously, however without affecting the duty to be performed by virtue of their engagement as aforesaid. The Scheme also did not envisage creation of any post or a full time job and it was in the said circumstance, that the Tribunal held in paragraph 15 of Ext.P1 order, that only if posts O.P.(KAT)Nos. 125 of 2017 & connected cases 12 were created, would it result in existence of vacancies and that it was not a case where ad-hoc contract appointments were being made in permanent vacancies.

12. Coming to the scope of the verdict passed by the Apex Court in Umadevi's case, particularly the benefit flowing from paragraph 53, it was observed by the Tribunal in paragraph 18 of Ext.P1 order, that the benefit ordered by the Supreme Court was only as a 'one time measure' for regularisation of certain employees, who were appointed in sanctioned posts, though the appointment was irregular (but not illegal) and were continuing for 10 years or more without the aid of any interim orders from courts/Tribunals. The Tribunal reiterated the observation of the Apex Court ( in paragraph 43) to the effect that unless the appointment was in terms of the relevant rules and after a proper competition among qualified persons, the same would not confer any right upon the appointee and when it was a contractual appointment, the appointment would come to an end at the end of the contract and that if it were an engagement or appointment on daily wages or casual basis, the same would O.P.(KAT)Nos. 125 of 2017 & connected cases 13 come to an end when it was discontinued. It was in the said circumstance, that the Tribunal found that no kind of permanency could be claimed by the applicants, which otherwise would only result in violation of Article 14 and 16 of the Constitution of India (Paragraph 19 of Ext.P1).

13. With regard to the ground of 'legitimate expectation' projected from the part of the petitioners/applicants, the Tribunal extracted the declaration made by the Apex Court in the relevant paragraph of the verdict in Umadevi's case , in paragraph 20 of Ext.P1, to hold that when a person enters a temporary employment or gets engagement as a contractual or casual worker and the engagement is not based on a proper selection as recognised by the relevant rules or procedure, he is aware of the consequence of the appointment being temporary, casual or contractual in nature and that, such a person cannot invoke the theory of 'legitimate expectation' for being confirmed in the post. Further reference was made to paragraph 50 of the Apex Court's verdict in Umadevi's case to repel the contentions raised by the applicants, placing reliance on Article 21 of the Constitution O.P.(KAT)Nos. 125 of 2017 & connected cases 14 of India, to the effect that, in the guise of upholding rights under Article 21 of the Constitution of India, a set of persons cannot be preferred over a vast majority of people waiting for an opportunity to compete for State employment. It was accordingly held that the applicants were fully aware of the terms and conditions and the nature of engagement, who accepted the employment with their eyes open, who cannot claim any relief to continue permanently, in view of the observations made by the Apex Court in paragraph 45 of the Umadevi's case.

14. The Tribunal proceeded further, analysing scope of the verdict passed by the Supreme Court in Nihal Singh and others vs. State of Punjab and others (AIR 2013 SC 3547) involving the question of regularisation of Special Police Officers in the State of Punjab, which was sought to be relied on by the applicants. It was observed that the recruitment therein was under Section 17 of the Police Act, 1861 which was effected by the State. After appreciating the facts and figures, it was held that the circumstances dealt with by the Apex Court in the said case were totally different and will not be applicable to the case O.P.(KAT)Nos. 125 of 2017 & connected cases 15 in hand. Similar distinction was made with regard to the decision of the Apex Court in Surendra Kumar and others vs. Greater Noida Industrial Development Authority and others [(2015) 14 SCC 382], where a 'policy decision' was taken by the Government to appoint contract employees to the posts in question; where the claim was for regularisation with effect from the date of initial appointment. The facts have been held to be different and not applicable to the case in hand. Similarly, the circumstances under which the Apex Court had passed the verdict in State of Jharkhand and others vs. Kamal Prasad and others [(2014)7 SCC 223]and the one in Amarkant Rai vs. State of Bihar and others [(2015)8 SCC 265] were also dealt with by the Tribunal in paragraph 26 of Ext.P1 and held that, by virtue of the crystal-clear difference in the factual position, the above verdicts would not support the case of the applicants under any circumstance to sustain the claim of regularisation.

15. With regard to the thrust placed by the petitioners/applicants on verdict of the Apex Court in Piara O.P.(KAT)Nos. 125 of 2017 & connected cases 16 Singh's case (cited supra),contending that one set of temporary hands cannot be replaced by another set of temporary hands , detailed discussion was made by the Tribunal from paragraph 27 onwards of Ext.P1. Referring to the observation made by the Apex Court in paragraph 26 of the decision of the Constitution Bench of the Apex Court in para 26 of Umadevi's case holding that the direction given in para 50 of Piara Singh's case was to some extent inconsistent with the conclusion in paragraph 45 therein and that the decision in Piara Singh's case (cited supra) cannot be the one laying down the law that all ad hoc, temporary or casual employees engaged without following the regular recruitment procedure should be made permanent, the Tribunal observed that the Constitution Bench in Umadevi's case(cited supra) did not specifically overrule the observation in paragraph 46 of the Piara Singh's case (cited supra) that an ad hoc or temporary employee should not be replaced by another ad hoc or temporary employee and he must be replaced only by a regular selected employee. However, the Tribunal has noted in paragraph 28 of Ext.P1 and elsewhere, that the Government had O.P.(KAT)Nos. 125 of 2017 & connected cases 17 not sanctioned any post under the Scheme and it was not a case where permanent posts were created resulting in regular vacancies and were filled up by contract employees. The method of selection was only for making contract appointment for fixed periods and it was not a case where the field was not occupied by any rules framed under Article 309 of the Constitution of India. No regular recruitment was ever envisaged, as duly sanctioned posts were not there and no permanent appointments were contemplated under the project, by virtue of which the principle laid down in Piara Sing's case (cited supra) holding that temporary or ad hoc employees should not be replaced by another temporary or ad hoc employee would not come to the rescue of the applicants. We find no irregularity or impropriety, much less any illegality with regard to the observation and declaration made by the Tribunal in this regard.

16. With regard to the challenge against the revised norms as per Annexure A17 dated 24.12.2014, the minimum educational qualification of 'Plus Two' or equivalent was prescribed in Clause 1 and the age limit was prescribed as O.P.(KAT)Nos. 125 of 2017 & connected cases 18 between 18 and 40 years; whereas for SC Promoters, who were assigned the duty of tutors in Pre-Metric Hosels, the minimum qualification was Degree with preference to B.Ed holders. As per Clause II of Annexure A17, 10% of the SC Promoters in a District were to be appointed from Social Workers, for whom the education qualification fixed was SSLC and upper age limit was

50. It was under Clause III of Annexure A17, that a further condition was imposed that persons who had worked as SC Promoters for more than 8 years will not be considered again. The challenge against Clause III, as already pointed out, has been rightly upheld by the Tribunal as per Ext.P1, holding that the said stipulation was violative of Article 16 of the Constitution of India and that such persons, who are duly qualified cannot be denied the right to participate in the fresh selection merely because they had worked for more than 8 years. Reliance was also sought to be placed on the verdict passed by the Supreme Court (Constitution Bench) in Krishan Chander Nayar vs. The Chairman, Central Tractor Organisation and others [AIR 1962 SC 602] as to the scope of Article 16 (1) of the Constitution of O.P.(KAT)Nos. 125 of 2017 & connected cases 19 India to the effect that the ban imposed should have a reasonable basis and must have some relationship to the suitability for employment or appointment to an office; thus holding that there was no nexus for the said stipulation with reference to the object to be achieved. The Tribunal set aside the said clause and has given appropriate directions in paragraph 34 of Ext.P1, which stand in favour of the petitioners/applicants. At the same time in paragraph 35 of Ext.P1, the Tribunal rejected the contention of the applicants that persons who had continued for 8 years and more will be the best suited, for performing various duties and therefore they were entitled for continuance and regularisation in service. We do not find any reason to take a different view.

17. With regard to the scope of the decision rendered by the Supreme Court in Piara Sing's case, it is to be noted that the observation that one set of temporary hands cannot be replaced by another set of temporary hands and that they can be replaced only by regular employees was made in a different context. As discernible from paragraph 2 of the said verdict, over O.P.(KAT)Nos. 125 of 2017 & connected cases 20 a period of several years, a large number of appointments were being made to Class III and IV services in the States of Punjab and Haryana (the two different States ) on ad-hoc basis, without reporting the vacancies to Public Service Commission or the Subordinate Service Selection Board and without adhering to the employment exchange requirements. The initial appointment was for a period of 'six months' or so, but the persons engaged were permitted to continue for years together under orders passed from time to time. Later, both the Governments issued orders for regularisation of such employees, subject to certain conditions. The petitioners who lost the chance to be regularised because of the conditions imposed were however permitted to continue, who approached the High Court of Punjab and Haryana seeking for regularisation. As observed in paragraph 4, besides the ad- hoc/temporary employees, certain other categories of persons engaged as "work charged employees/daily wagers/casual labourers" engaged in temporary/time bound projects also approached the High Court, seeking regularisation. In some writ petitions, plea of equal pay O.P.(KAT)Nos. 125 of 2017 & connected cases 21 for equal work was also raised . The High Court held that the conditions prescribed in the orders of regularisation were bad for various reasons and observed that continuing employees on ad- hoc basis for more than one year without regularising them was arbitrary and unreasonable.

18. The directions given by the High Court while allowing the writ petitioners ( 1 to 8) were extracted by the Apex Court in Paragraph 7 of the judgment in Piara Singh's case and they are reproduced below for convenience of reference:

"The, directions ultimately granted by the High Court while allowing the batch of writ petitions are to the following effect (at pp. 821-822 of 1989 Lab IC 807) (Punj and Har):

(1) The State Government should avoid making any ad hoc appointments. If they do so, it shall be for initial period of six months and not be extended beyond other six months. If their term is extended beyond one year, to such employees the benefits arising from our following conclusions will apply, according to the group in which they fall.

(2) The Punjab State Employees covered by Group No.1 would be considered as regular members of the service on completion of more than one year after ignoring notional and permissible breaks in service,, as noticed by O.P.(KAT)Nos. 125 of 2017 & connected cases 22 the Supreme' Court in various judgments and also by our Full Bench in Jagdish Lal's case (AIR 1988 Punj and Har

272) (supra). However, the concerned departments would pass orders for their regularisation and they would be entitled to all benefits of service from the date of their initial appointments.

As regards Haryana employees covered by Group No. 1 on completion of two years of service they would be considered as regular members of service after ignoring their notional and permissible breaks as noticed by the Supreme Court in various judgments and also by our Full Bench in Jagdish Lal's case (supra), and the concerned departments would pass orders for their regularisation. In case of those, who have completed more than one year of service, their services shall not be terminated till the new policy for regularisation in accordance with our judgment is framed, in which a direction has been issued to reframe the policy for regularisation on completion of more than one year of service, and without the condition which may hamper the policy of regularisation, irrespective of the fact whether or not their names were sponsored by the Employment Exchange or that their posts are within or outside the purview of the SSSB. In case such petitioners complete two years, then on completion of two years, they will be considered as regular members of service and appropriate orders for their regularisation will be passed by the concerned departments, and such employees would be entitled to all service benefits from the date of their initial O.P.(KAT)Nos. 125 of 2017 & connected cases 23 appointments.

(3) The services of work charged, daily wage workers and casual labourers (other than those who fall within the definition of workman under the 1947 Act covered by Group (III) serving in the different departments of Government of Punjab and Haryana, as also their corporation who have put in more than one year of service would continue to serve and their services will not be dispensed with. The concerned departments shall frame scheme for their absorption, as regular employees on completion of more than one year of service, and their services shall be regularised under those schemes. On regularisation they would be entitled to all service benefits from the date of initial appointments. As regards work charged employees, who have completed five years of service, they shall be considered to be regular employee under the scheme of regularisation framed by the State of Punjab and order for their regularisation shall be passed. As regards work charged employees of the State of Haryana, on completion of four years of service they shall be considered to be regular under the regularisation scheme framed by the State and appropriate orders for their regularisation shall be passed. However, they would be entitled to all service benefits from the date of initial appointments. (4) The persons falling in Group (III) are those who come within the definition of 'workman' under the 1947 Act. On completion of 240 days, which shall be counted keeping in view the decision of the Supreme Court in The O.P.(KAT)Nos. 125 of 2017 & connected cases 24 Workmen of American Express International Bank Corporation v. The Management of American Express, AIR 1986 SC 458, they would be entitled to benefits of all the provisions of Chapter V-a of the 1947 Act, and their services should not be dispensed with without following the procedure laid in that Chapter. For the purposes of regularisation, what has been stated for the employees falling in Group II, would also be applicable to the employees falling in this group. On regularisation they would be entitled to the benefits of provisions of the 1947 Act as also the Service Rules, from the date of their initial.appointments, as applicable to the departments concerned from time to time.

(5) The ad hoc temporary employees in temporary organisations like the Adult Education Scheme and Integrated Child Development Scheme, covered by Group IV, who have continued in service for more than one year with notional breaks would be entitled to the benefits of service and benefit of the directions issued by the Supreme Court in Bhagwan Dass's case (AIR 1987 SC 2049) (supra), and the service of none of them would be terminated except on abandonment of the scheme. (6) In case services of an employee, who comes within the ambit of Groups I to Ill, have already been terminated on the completion of his more than one year of service, he shall have to be taken back in service in case of a request being made by him to the concerned department of the government before the expiry of three years and two months of such termination. Some of the petitioners, who O.P.(KAT)Nos. 125 of 2017 & connected cases 25 had put in more than one year of service are out. They would be reinstated forthwith with continuity of service and all benefits

7. In case some posts are abolished or some persons are found surplus, junior most would be out on the rule of last come first go? But if later on vacancies arise or posts are created, they will have to be called back first in the order of seniority, that is, on the rule of last go first, come and if still some vacancies remain, new incumbents through SSSB may be accommodated.

(8) The learned counsel for the State was asked to point out if the claim made by the petitioners for equal pay for equal work as being paid to their counterparts, in view of the decision taken by the Supreme Court in various cases was not justified. He was not able to point out if the claim so made was not correct. Accordingly, they would be paid wages as claimed from the date of initial appointments in service. The arrears should be paid within six months from today. It is again made clear that till regularisation policies are framed as directed by us and regularisation orders are passed, the employees shall continue and their services shall not be terminated."...

19. The 'Grounds' upon which the above directions were opposed by the State Government have been summarised in paragraph 8 of Piara Singh's case and we find it appropriate to extract the same as well, to understand the scope of the verdict. O.P.(KAT)Nos. 125 of 2017 & connected cases 26

8. The States of Punjab and Haryana are questioning the validity and correctness of the above directions in these appeals. Some employees have also directly approached this court by way of writ petitions contending that they too are governed by the directions given by the High Court and should be given the benefit of the same. The respondents in these appeals and such writ petitioners are supporting the judgment and directions aforesaid. Mr. Sibal, learned counsel for the appellants questioned the validity and correctness of the directions given by the High Court on the following grounds:

(1) That the High Court has exceeded its jurisdiction in virtually amending the Government orders on the subject of regularisation. The learned Judges were not justified in holding that the fixation of a particular date in the respective G.Os. was arbitrary, and/ or that it was unrelated to the object. The learned Judges have also erred in holding that the requirement of having been sponsored by the Employment Exchange was invalid (2) The learned Judges were notjustified in law in directing that all persons who have put in one year's service should be regularised unconditionally. No court has gone so far nor is there any warrant for giving such a direction. Such a direction gives rise to several difficulties and complications for the administration which were evidently not taken into consideration by the learned Judges while giving the said directions. O.P.(KAT)Nos. 125 of 2017

& connected cases 27 (3) For regularisation, the first pre-condition is that there must be a vacancy, whether permanent or temporary. 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.

(4) The direction with respect to workcharge establishment is equally unsustainable in law. So is the direction with respect to casual labour and daily wagers. (5) The learned Judges erred in directing the Government of Punjab to reduce the minimum qualifying service to one year just because the Haryana Government has 6een prescribing only one year's qualifying service in its orders. Both are independent States and the rule in one State cannot be thrust upon the other.

(6) Because of the impugned directions, regularly selected persons are being kept out of jobs. The effect of the impugned directions is that unqualified ineligible persons who have come through back door and whose records of service may also not be satisfactory are all being regularised at one go. The rule of reservation is also being violated by the said directions.

(7) It is the prerogative of the Executive to create and abolish posts. The Government cannot be compelled to create posts where there is no need for such posts or O.P.(KAT)Nos. 125 of 2017 & connected cases 28 where the need is no longer there.

The above contentions are supported and reiterated by the counsel appearing for the State of Punjab The Apex Court, after referring to the facts and figures, proceeded to examine whether the High Court was right in holding that the conditions prescribed in the orders passed by the State Government were bad, as noted in paragraph 13 onwards, and it was held in favour of the appellant State. It was specifically observed in paragraph 17, that the directions given by the High Court that all those ad-hoc temporary employees who had continued for more than an year should be regularised was difficult to be sustained and that the direction was given without reference to the existence of a vacancy.

20. The persons coming within the purview of the definition of 'workmen' as contained in the Industrial Disputes Act was dealt with in paragraph 19 and it was held that such persons continuing over a number of years had a right to claim regularisation and it had to be in a fair manner, keeping in view the principles enunciated by the Apex Court; and that the blanket direction given cannot be sustained. The orders passed O.P.(KAT)Nos. 125 of 2017 & connected cases 29 by the Govt. of Haryana providing for regularisation of such persons on completion of 'ten years' were specifically noted and as such, no further directions were held as called for; whereas in the case of State of Punjab , it was directed to verify the vacancy position and frame a Scheme for absorption in a fair and just manner, providing for regularisation of such persons having regard to their length of service and other relevant conditions. Thereafter, the contents of the affidavit sworn to by the Under Secretary to the State of Punjab that instructions issued by the Haryana Government for regularisation of the services of Class III ad-hoc employees would stand adopted by the Punjab Government 'mutatis mutandis' was taken note of in paragraph

22. The extent of interference made with the directions given by the High Court of Punjab and Haryana ( as extracted already) is only in respect of directions- 1, 2, 3, 4, 6 and 8, (which were set aside) as contained in the last paragraph of the verdict in Piara Singh's case, declaring that the only direction given as per the said verdict is the one as contained in paragraph 19, i.e. with regard to the necessity to frame a Scheme . The said paragraph O.P.(KAT)Nos. 125 of 2017 & connected cases 30 (para 27) is reproduced below.

27. For the above reason, all the appeals are allowed and the orders under appeal are set aside. The directions given by the High Court in the judgment in W.P.(C) No. 72/ 88: (reported in 1989 Lab IC 807) (Punj and Har) namely directions Nos. 1, 2, 3, 4,6 and 8 are set aside. The only direction given herewith is the one contained in para 19.

The writ petitions seeking the benefits given in the judgment under appeal are dismissed.

No costs.

The scope of the observation made by the Apex Court that one set of temporary hands shall not be replaced by another set of temporary hands, has to be analysed in the above background.

21. Paragraph 25 of the above verdict, which opens with the sentence "Before parting with the case".. is extracted below:

"25. Before parting with this case,we think it appropriate to say a few words concerning the issue of regularisation of ad hoc/temporary employees in government service. The normal rule, of course, is regular recruitment through the prescribed agency but exigencies of administration O.P.(KAT)Nos. 125 of 2017 & connected cases 31 may sometimes call for an ad hoc or temporary appointment to be made. In such a situation, effort should always be to replace such an ad hoc/temporary employees by a regularly selected employee as early as possible. Such a temporary employee may also compete along with others for such regular selection/ appointment. If he gets selected, well and good, but if he does not, he must give way to the regularly selected candidate. The appointment of the regularly selected candidate cannot be withheld or kept in abeyance for the sake of such an ad hoc / temporary employee.

Secondly, an ad hoc or temporary employee should not be replaced by another ad hoc or temporary employee should not be replaced only by a regularly selected employee. This is necessary to avoid arbitrary action on the part of the appointing authority.

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

An unqualified person ought to be appointed only when O.P.(KAT)Nos. 125 of 2017 & connected cases 32 qualified persons are not available through the above processes.

If for any reason, an ad hoc or temporary employee is continued for a fairly long spell, the authorities must consider his case for regularisation provided he is eligible and qualified according to rules and his service record is satisfactory and his appointment does not run counter to the reservation policy of the State.

The proper course would be that each State prepares a scheme, if one is not already i n vogue, for regularisation of such employees consistent with its reservation policy and if a scheme is already framed, the same may be made consistent with our observations herein so as to reduce avoidable litigation in this behalf. If and when such person is regularised he should be placed immediately below the last regularly appointed employee in that category, class or service, as the case may be. So far as the work-charged employees and casual labour are concerned, the effort must be to regularise them as far as possible and as early as possible subject to their fulfilling the qualifications, if any, prescribed for the post and subject also to availability of work. If a casual labourer is continued for a fairly long spell - say two or three years -- a presumption may arise that there is regular need for his services. In such a situation, it becomes obligatory for the concerned authority to examine the feasibility of his regularisation. While doing so, the authorities ought to adopt a positive approach coupled with an empathy for the person. As has been O.P.(KAT)Nos. 125 of 2017 & connected cases 33 repeatedly stressed by this court, security of tenure is necessary for an employee to give his best to the job. In this behalf, we do commend the orders of the Government of Haryana (contained in its letter dated 6-4-90 referred to hereinbefore) both in relation to work charged employees as well as casual labour.

We must also say that the orders issued by the Governments of Punjab and Haryana providing for regularisation of ad hoc/temporary employees who have put in two years/ one year of service are quite generous and leave no room for any legitimate grievance by any one.

These are but a few observations which we thought it necessary to make, impelled by the facts of this case, and the spate of litigation by such employees. They are not exhaustive nor can they be understood as immutable. Each Government or authority has to devise its own criteria or principles for regularisation having regard to all the relevant circumstances, but while doing so, it should bear in mind the- observations made herein."

From the above, it is quite evident that the observations made by the Apex Court as above, were only as general guidelines, that too, in the particular factual context.

22. The factual context as noted in paragraph 2 of the judgment in Piara Singh's case was that, over a period of O.P.(KAT)Nos. 125 of 2017 & connected cases 34 several years, the permanent posts available in the Government Service were not being filled up by the Government, but for going on effecting ad-hoc appointment/temporary appointments and continuing them for quite long and at times, replacing one set of ad-hoc/ temporary employees by another set, even without reference to the Public Service Commission/Subordinate Selection Board/Employment Exchange. This was deprecated by the Apex Court holding that, in so far as there was no dispute to the fact that it was against 'sanctioned posts' that such an exercise was being pursued, one set of temporary hands cannot be replaced by another set of temporary hands and that such vacancies should be filled up by regular hands. The said observation does not come to the rescue of the petitioners to hold that the temporary hands are having a right to continue in service for ever, till vacancies are filled up on regular basis, in so far as there is no sanctioned posts and regular appointment is never contemplated under the Scheme/G.O.in view of the limited scope of job requirement/engagement. As it stands so, we find that the challenge raised by the petitioners against Ext.P1 O.P.(KAT)Nos. 125 of 2017 & connected cases 35 passed by the Tribunal fails, warranting no interference.

23. During the course of hearing, reliance is sought to be placed by the petitioners on the decision rendered by the Apex Court in Mohd, Abdul Kadir and another vs. Director General of Police, Assam [(2009) 6 SCC 611) to contend that the ad-hoc/temporary engagement, under a particular Scheme has to be 'co-terminus' with the Scheme and in so far as the Scheme continues, the petitioners cannot be replaced by another set of temporary hands. We find it difficult to accept the said proposition, as the factual position involved in the said case is entirely different. The Scheme formulated by the Govt. of India (Prevention of Infiltration of Foreigners Additional Scheme, 1987 for Assam) was for strengthening the Assam Governmental machinery for detection and deportation of foreigners in the year 1960 . The Scheme was being extended from time to time and it continued for quite long, by virtue of which, the employees continued on ad-hoc basis for several years had sought for the benefit of regularisation. The Apex Court held that if the temporary or ad-hoc engagement is in connection with a O.P.(KAT)Nos. 125 of 2017 & connected cases 36 particular Project/a specific Scheme, service of such ad- hoc/temporary employees engaged under the Project or Scheme would come to an end on completion/closure/cessation of the Project or Scheme, making it clear that merely since the Scheme had been in operation for some decades or that an employee concerned was continuing on ad-hoc basis for one or two decades would not entitle the employee concerned to seek permanency or regularisation. It was further observed by the Apex Court that, even if any posts were sanctioned with reference to the Scheme, such sanction was of ad-hoc or temporary posts, coterminous with the Scheme and not for permanent posts ; adding that on completion of the Project or discontinuance of the Scheme, those who were engaged with reference to or in connection with such Project or Scheme cannot claim any right to continue in service nor can seek regularisation in some other Project or Service. The said decision clearly reveals that, even if the posts are sanctioned, such sanction of the posts is to be coterminous with the Scheme and will never have independent existence, once the scheme is wound up. In O.P.(KAT)Nos. 125 of 2017 & connected cases 37 the instant case, there is no case for the petitioners that any post was sanctioned and in the absence of any sanctioned post, when the Scheme is being continued with specific mandate to have it operated by engaging ad-hoc/temporary engagement, subject to the specific conditions, with the particular nature of job requirements and the right to receive an honorarium ( not any salary), the petitioners cannot seek to have any benefit with reference to the position dealt with by the Apex Court in Mohd, Abdul Kadir and another vs. Director General of Police, Assam [(2009) 6 SCC 611]. The said decision does not come to the rescue of the petitioners.

24. Finally, reliance is sought to be placed on the verdict passed by the Apex Court in State of J&K vs. District Bar Association, Bandipora [(2017)3 SCC 419] as to the necessity to issue a direction to frame a Scheme for regularisation of the ad-hoc or temporary engagement . The crux of the factual situation in the said case is that, in a Public Interest Litigation demanding a District Court complex with proper amenities, filed by the Bar Association, the daily-rated workers of O.P.(KAT)Nos. 125 of 2017 & connected cases 38 High Court filed an application for regularisation. The High Court directed the State Government for regularisation of 209 employees, as a 'one time measure'. When the State Government appointed an empowered Committee to look into regularisation of nearly 61000 daily-rated and casual workers in various departments of the State, the High Court, by the order impugned, directed the officer concerned to explain why incorrect statement was filed to the effect that steps had already been taken for regularisaiton. The High Court took the view that, following dismissal of SLP against its interim order, the State Government was duty-bound to create 209 posts. The above verdict passed by the High Court of Jammu and Kashmir was set aside by the Apex Court and the matter was remanded to decide the issue afresh, in the light of the law declared by the Constitution Bench of the Apex Court in Umadevi's case (cited supra) and the principles enunciated by the Apex Court in Renu vs. District and Sessions Judge [(2014) 14 SCC 50]. The said decision is an authority to the effect that the Court cannot direct regularisation in exercise of the power under Article 226 of O.P.(KAT)Nos. 125 of 2017 & connected cases 39 the Constitution of India and that the temporary employees do not have any right of regularisation, even if they had worked for a long duration and that the power to regularise such employees exclusively lie upon the Executive and Legislature, by framing a Scheme , if found appropriate. In so far as the engagement of the petitioners was admittedly under specific circumstances, with limited job requirements, that too, not against any sanctioned posts, the claim to permit them to continue for ever, contrary to the conditions notified, is not liable to be accepted.

25. The prayer made to direct the State Government to frame a Scheme, to provide regularisation of the persons like the petitioners is also not liable to be acted upon. Whether the Scheme is to be continued or not; what shall be the conditions etc., come within the exclusive domain of the State Government. It is for the State Government to stipulate the relevant aspects including the terms and conditions, which cannot be transgressed or endorsed into by this Court. Similarly, the power vested with the Supreme Court under Article 142 of the Constitution of India, which could be invoked to direct the State to frame a Scheme of O.P.(KAT)Nos. 125 of 2017 & connected cases 40 appropriate measure, unfortunately, is not available with this Court, while exercising the jurisdiction under Article 226 of the Constitution of India . For this reason as well, we find it difficult to give any such direction to the State in this regard.

Only one thing remains to be considered, i.e., even admittedly, 10% of the total vacancies of SC Promoters in the District are to be filled up by considering the persons, who are working as 'Social Workers' as dealt with under Clause II of Annexure A17. In that case, the maximum age limit is '50 years'; whereas it is 18-40 years in other cases, as mentioned in Clause I (ii) of Annexure A17. It is conceded across the Bar that the petitioners' applications in response to Annexure A17 will be considered, if they satisfy the requirements (educational qualification and age factor) for fresh engagement. But in so far as the petitioners who were continuing in service for more than 8 years and are stated as having crossed the age of 40 years, it is to be considered, whether they could be identified by placing them enbloc under this segment, i.e. 10% of the total number of vacancies available in the District, where the maximum age is O.P.(KAT)Nos. 125 of 2017 & connected cases 41 '50 years'. We find it appropriate to cause the above modification to the said extent, i.e. in respect of this group, preference shall be given to the persons having the age group - above 40 years and upto 50 years and that only if no qualified person satisfying the above requirement is available under this Group, will it go to the other persons of lesser age, i.e., less than 40 years. Clauses I & II of Annexure A17 will stand modified to the said extent. Subject to the above, we decline interference and the Original Petitions are dismissed.

P.R. RAMACHANDRA MENON, JUDGE SHIRCY V, JUDGE lk

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