STATE OF HARYANA AND ORS. ETC.ETC. v. PIARA SINGH AND ORS. ETC. ETC.

The Judgment of the Court was delivered by B B.P. JEEVAN REDDY, J. 1. This batch of Special Leave Petition5 are directed against the judgment of a Division Bench of Punjab an4 ·~ Haryana High Court in a batch of writ petitions, the first among them bein~ Writ Petition (C) No.72 of 1988 (Piara Singh and Anr. v. State of Haryana c - and Ors.). A large number of writ petitions arising from both the States of Punjab and Haryana were heard together and a common judgment, delivered giving certain directions in the matter of regularisation of the, adhoc/temporary employees, members of work charged establishments,. daily-wagers, casual labour and those engaged temporarily in temporary' J, schemes. We have heard all the counsel appearing in this batch at quite· D some length.

Leave granted in all the Special Leave Petitions.

2. Over the last several years a large number of appointments were y made to Class III and IV services in the States of Punjab and Haryana on ad hoc basis i.e., without reference to Public Service Commission or the Subordinate Services Selection Board and without adhering to employment exchange requirements. They were initially appointed for a period of six months or so but were continued for years together under orders passed from time to time. (In so far as the State of Haryana is concerned, most of the class III posts in the Education Department were kept out of the -~~ purview of the S.S.S.B. during the period 1970 to 1987. For a period of 10 years, it is stated, there was no Board in existence in the State. Only in March 1987, almost all the posts in Education Department and other Departments were brought within the purview of the S.S.S.B.). As a result of the above policy, a large number of ad hoc employees came into existence in both the States, who were continuing over several years without being regularised and were agitating for their regularisation. To meet the - '"' situation, both the Governments issued orders from time to time for regularisation of such employees subject to centain conditions. The orders issued by the Government of Punjab are the following: H

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A S.No. Date of issue Substance of the Order ~·· 1 2 3

1Copy pinpoint1. 3.3.1969 Regularisation of ad hoc employees oompleting one year service on 28.2.1969.

2Copy pinpoint2. 29.1.1973 Regularisation of ad hoc employees completing B one hear service on 1.1.1973.

3Copy pinpoint3. 3.5.1977 Regularisation of ad hoc employees completing one year service on 1.4.1977. ~

4Copy pinpoint4. 20.10.1980 Regularisation of ad hoc employees. completing one year service on U0.1980. c 5. 20.10.1982 Regularisation of ad hoc employees completing one year service on 26.10.1982

6. 29.3.1985 Regularisation of ad hoc employees completing two years service on 1.4.1985

7. 8.8.1985 Modifying the order issued on 29.3.1985 and "'-- D directing that all Class III ad hoc employees having one year service on 1.4.1985 may be regularised.

8. 1.9.1986 Regularisation of Class III ad hoc employees appointed after 1.4.1984. E The orders issued by the Government of Haryana are the following: 1" S.No. Date of issue Substance of the Order 1 2 3 F 1 1.1.1980 Regularisation of all Class. III ad hoc employees who have completi:d two years service on 31.3.1979. )r'

2. 3.1.1983 Regularisation of ad hoc Clerks in Class III who have completed two years service on G 15.9.1982.

3. 19.1.1984 Regularisation of Class III ad '1oc employees who have completed two years of service on 15.9.1982. (The employees who were left out ·r- in the orders dt. 3.1.1983 were brought within the purview of this order.) H

p. 839 Copy page pinpoint

4. 15.2.1987 Regularisation of all Class III ad hoc A employees other than teachers working against posts which have been taken out of the purview of the S.S.S.B. and who 1'.ave completed two years service on 1.11.1986~ B In pursuance of the above orders a number of persons who satisfied the conditions prescribed in each of those orders were regularised 'but many could not be. Their services could not be regularised for the rea~on that they did not satisfy one or the other of the conditions prescribed in the said orders. They were, however, allowed to continue in service: It is this category of people. who approached the High Court· of Punjab a~d C

-- Haryana praying for issuance of Writ, Order of Direction for regularisation of their service.

3. At this stage, it would be appropriate to notice the conditions prpscribed by the aforesaid orders which were not satisfied by the writ p6titioners and on account of which they were not regularised. The order D of the Government of Haryana dated 1st January, 1980 prescribed the following conditions for regularisation:

(1) He must have put in a minimum service of two years on 31.12.1979. E (2) He must have been recruited through the Employment Exchange. '

(3) The service and conduct of such emplyee should be of an overall ' good category.

(4) He must have possessed the prescribed qualifications for the post F at the time of his appointment on ad hoc basis.

In the Order dated 3rd January 1983, a further condition, besides the aforesaid conditions.· was imposed viz.. that the employee must bel~ng to . the category for which the post stands reserved. G Similarly in the Order dated 29th March, 1985 issued in the case of Goverilm.ent of Punjab (issued by the President of India) the conditions prescribed.were the following:

(1).He must have completed a niinimum of two years service on 1st fl

840 SUPREME COURT REPORTS £1992] 3 S.C.R.

A April, 1985. ~ (2) He must have fulfilled the conditions for eligibility (a~demic qualifications, experience and age) at the time of his first adhoc/tentpnrary appointment.

B (3) He must have been recruited through the Employment Exchange or by open advertisement. }- (4) His record of service has been satisfactory.

(5) He is found medically fit for entering the Government service; c his character and antecedent have been duly verified and found suitable fQr Government service.

(6) A regular post/vacancy is available for regularisation. ,L_ D (7) He has been found fit for regularisation by the Departmental Selection Committee.

(8) Among the persons regularised, interse seniority would be ob- served. All these persons would be placed junior to those working on regular basis. E These are the conditions common to all the orders issued from time 1 to time by the Governments of Punjab and Haryana. Only those ad hoc/tern- porary employees who could not be regularised for want of satisfy,ing one or ,,,....,.. the other of the conditions prescribed in the respective orders that had approached the High Court by way of Writ Petitions. They contended that the conditions prescribed in the said orders were arbitrary, discriminatory )r and unrelated to the object. It -is this contention which was .examined at some length and accepted by the high Court.

4. Besides the ad hoc/temporary employees, certain other categories of persons also approached the High Court whose cases too have been dealt with in the judgment under appeal. They are work-charged employees daily~wagers, casual labour and those employed rin temp0rary/time-bound projects. They too wanted to be regularised. A plea of equal pay for equal r - work was also advanced by certain petitioners. These pleas too were considered and upheld.

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5Copy pinpoint5. The reasons for which the High Court held the conditions A prescribed in the orders of regularisation aforementioned, as bad are to the following effect:

(a). VALIDITY OF FIXING A PARTICULAR DATE BY WHICH THE SPECIFIED PERIOD OF SERVICE SHOULD HA VE BEEN COM- PLETED. B

The High Court held, "th~re is no magic in fixing a date by which an employee was to complete the prescribed tenure of service for regularisa- tion ..........fixing of a date has no reasonable basis or intelligible different.a C

- for the object to achieve ........ following that view (the view taken by this Court in lnder Pal Yadav, (1985] 3 S.C.R. 837) we hold that the dates fixed for the policies of regularisation of the two Governments are di~­ criminatory......we hold that the various dates fixed from time to time in their regularisation policies are hit by Articles 14 and '16 of the Constitutiol) of India." D (b) VALIDITY OF THE REQUIREMENT THAT THE EMPLOYEE SHOULD HAVE BEEN SPONSORED BY EMPLOYMENT EX-. CHANGE.

The High Court held that this Court has, in the Union of India v.. Hargopal (1987 S.C. 1227), held that "if at a given moment suitable E candidates amongst candidates sponsored by the Employment Exchanges are not available or no candidate has been sponsored by the Employment Exchange and recruitment is made on ad hoc basis from the sources other than employment exchange, it cannot be said in regularisation policy that such candidates would not -be entitled to be regularised. The basic policy ' F decision is that ad hoc employees who have worked for quite some time - and_ .have gained experience should be regularised and in case they are shunted out, hardship wouid be caused in numerous ways........we find no justification in the policy of regularisation that the eandidates sponsored through the Employment Exchanges alone would be entitled to regularisa- G tion." No finding was, however, recorded that the petitioners or any of them were appointed without reference to the Employment Exchange only after the Employment Exchange intimated the concerned authority that no suitable candidate is available with it.

(c) VALIDITY OF THE REQUIREMENT THAT THE CON- ff ·-

842 SUPREME COURT REPORTS (1"992] 3 S.C.R.

A CERNED POSTS SHOULD NOT BE WITHIN THE PURVIEW OF ~ S.S.S.B.

The High Court held that inasmuch as most of the Class III and Class IV posts were kept out of the purview of the S.S.S.B. in the State of Haryana during the period 1970 to March, 1987 and also because for a B period of ten years there was no S.S.S.B. in existence in this State, imposi- tion of this condition by the Government of Haryana is unreasonable and arbitrary. r,.

6Copy pinpoint6. Having expressed the opinions above-mentioned, the High Court c referred to certain decisions of this court and of its own, and expressed the

~ view that continuing employees on adhoc basis for more than one year without regularising them is arbitrary and unreasonable. This principle was also held applicable to other categories of employees like daily wagers, casual labour and others, who were ---'"workmen" as defined in the In- - dustriaf Disputes Act. The court further opined that inasmuch as the State ,~ D of Haryana was prescribing one year's service for regularisation (in its orders) the Punjab Government cannot prescribe two years qualifying service. Thus, one year service was declared as the norm for all such employees to become entitled to regularisation.

7Copy pinpoint7. The directions ultimately granted by the High Court while allowing the batch of writ pettitions are to the following effect: '1' (1) The State Government should avoid making any ad hoc appomtments. 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, ac- )r- cording 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 eompletion of more than one year after ignoring notional and permissible breaks in service, as noticed by the Supreme Court in various judgments and also by our Full Banch in Jagdish Lal's case 'y - I (supra). However, the concerned departments would pass or- dets for their regularisation and they would be entitled to .all benefits of service from the date of their. initial appointments.

STATE v. PIARA SINGH [REDDY, J.) 843

As regards Haryana employees covered by Group No. l on completion of cwo 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 ~ Jagdish Lat'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, i,s framed, in which a direction has been issued ~o re-frame the policy for regularisation on completion of more than one year of service, and without the condition which may c hamper the policy of regularisation, irrespective of the fa~t whether or not their names were sponsored by the Employment Exchange or thal'their posts are within or outside the purview of the S.S.S.B. In case such petitioners complete tWo years, then on completion of two years, they will be considered as regular D members of service and appropriate orders for their regularisa· tion will be passed by the concerned departments, and such employees would be entitled to all service benefits from the, date of their initial appointments.

(3) The services of work charged, daily wage workers and E y casual labolirers (other than those who fall within the definition , of workman under the 1947 act covered by Group III) Serving · '• in the different departnlents of Governmen! of Punjab and Haryana, as also their corporations who have.put in more than , one year of service, would continue to serve and their services F will not be dispensed with. The ci>ncerned 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 intial appointments. ,a

-, As regards work charged employees, who have completed five years of service, they shall be considered to be regular employees under the scheme of regularisation framed by the State of Punjab and order for their regularisation shall be a

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A 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 regularisa- tion shall be passed. However, they would be entitled to all service benefits from the date of initial appointments. B (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 r of the Supreme Court in The Workmen of American Express c International Bank Corporation v. The Management ofAmerican Express, A.l.R. 1986 S.C. 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 regularisa- tion, what has been stated for the employes falling in Group II, -D 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 depart- ments concerned from time to time. E (5) The ad hoc temporary employees in temporary organisa- -,, tions like the Adult Education Scheme and Intergreted Child Development Scheme, covered by Group IV, who have con- tinued in service for more than one year with notional breaks would be entitled to the benefits of service and benefit of the F directions issued by the Supreme Court in Bhagwan Dass's case 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 come within the ambit of Groups I to III, have already been terminated on the com- G pletion of his more than one year of service, he shall have to be taken back in service iri case of a request being made by him to the concerned department of the government before the 'r - I

expiry of three years and two months of such termination.

H Some of the petitioners, who had put in more than one year of

STATE v. PIARA SINGH [REDDY, J.) 845

service are out. They would be reinstated forthwith with con- A tinuity 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 caUed back first in the order of seniority, that B is, on the rule of last go first come and if still some vacancies remain, new incumbents through S.S.S.B. may be accom- modated.

(8) The learned counsel for the State was asked to point out if C

..... the claim made by the petitioners for equal pay for equal work as being paid to their counterparts, in view of the decision t~en 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 D 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 ter- E minated."

8Copy pinpoint8. 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 virtuitlly -~ amending the Government orders on the subject of regularisation. The learned Judges were not justified in holding that the fixation of a partic*1ar date in the respective G.Os. was arbitrary and/or that it was un-relate4 to H I

p. 846 Copy page pinpoint

A the object. The learned Judges have also erred in holding that the requie.- ~- ment of having been sponsored by the Employment Exchange was invalid.

(2) The learned Judges were not justified in law in directing that all persons who have put in one year's service should be regularised uncondi- .... tionally. No court has gone so far nor is there any warrant for giving such B a direction. Such a direction gives rise to several difficulties and complica- tions for the administration which were evidently not taken into considera- tion by the learned Judges while giving the said directions. ·:,r (3) For regularisation, the first pre-condition is that there must be a c 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 capatjty of --- any Government in India to comply with such directions. .>t.. D (4) The dir~ction with respect to work-charge establishment is equal- ly 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 c•. E Haryana Government has been prescribing only one year's qualifying ser- vice in its orders. Both are independent States and the rule in one State 1 connot be thrust upon the other.

(6) Because of the impugned directions, regularly selected persons F are being kept out of jobs. The effect of the impugned directions is that unqualified ineligible persons who have come through back do~r and whose records of service · may also not be satisfactory are all beiiig 1

regularised at one go. The rule of reservation is also being violated by the said directions. G (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 where the need is no longer there. :r (8) The above contentions are supported and reiterated by the H counsel appearing for the State of Punjab.

STATE v. PIARA SINGH [REQDY, J.J 847

9Copy pinpoint9. On the other hand, -it is contended by the counsel for the respon- A dents and the counsel for the writ petitioners that the directions given are perfectly warranted in all the circumstances of the case and have been given following the decisions of this court. It is submitted that the said directions have been given with a view to curb the arbitrariness _of the authorities and with a view to give a satisfactory solution to a human B problem created by the policies of the Governments themselves. It is 1

submitted by Shri R.KGarg that the work-charged employees should be , treated on par with ad hoc employees and ought to be regularised on the 1st of April of each year. All those persons who are working in the permanent posts ought to be regularised, says the counsel. Sri M.K. ' Ramamurthy, appearing for the work charged employees contended that C 1

the general concept as to work charge employees, viz., that the employment is confined to a particular work or project is not correct. He submitted that this is a legacy left behind by the British. He submitted that the work charge employees are employees of the work charge establishment and so long as one or the other work iS there, they sl,10uld be continued. Inasmuch as the Government, particularly at the present· stage of development, is never · D , without a project or work, these employees must also be regularised. ' Indeed, according to the counsel the concept of work charge establishment 1

is a mere matter of accountancy. It is distinct from project employment. It is really temporary employment which in the nature of things must be treated as regular. Other counsel appearing for the respondents in the, E y appeals and for the writ petitioners supported these contentions.

10Copy pinpoint10. Ordinarily speaking, the creation and abolition of a post is the ' prerogative of the Executive. It is the Executive again that lays down the , conditions of service subject, of course, to a law made the appropriate , F legislature. This power to prescribe the conditions of service can be exer-· cised either by making Rules under the proviso to Article 309 of the! Constitution or (in the absence of such Rules) by issuing Rules/i.11structions1 in exercise of its executive power. The court comes into the picture only, to ensure obsezyance of fundamentat rights, statutory provisions, Rules and other instructions: if any, governing the conditions of service. The main' G concern of the court in such matters is to ensure the Rule of law and to -~ see that the executive acts fairly and gives a fair deal to its employee~ consistent with the requirements of Articles 14 and 16. It also means that the State should not exploit its employees nor should it seek to ·take advantage of the helplessness and misery of either the unemployed persons H . I '

p. 848 Copy page pinpoint

A or the employees, as the case may be. As is often said, the State must be a model employer. It is for this reason, it is held that equal pay most be given for equal work, which is indeed one of the directive principles of the Constitution. It is for this very reason it is held that a person should not be kept in a temporary or ad hoc status for long. Where a temporary or ad hoc. appointment is continued for long the court presumes that there is need and warrant for a regular post and accordingly directs regularisation. While all the situations in which the court may act to ensure fairness cannot be detailed here, it is sufficient to indicate that the guiding principles are the ones stated above. The principles relevant in this behalf are stated by this Court in several decisions, of which it would be sufficient to mention two decisions having a bearing upon the issue involved her~. They are Dharwad Distt. P. W.D. Literature Daily ·Wage Employees Association v. State of Kamataka and Ors., [1990) 2 S.C.C. 396 and Jacob v. Kera/a Waw Authority. [1990) Supp. 1 S.C.R. 562. In the first case, it was alleged that about 50,000 persons were being employed on daily- rated or t;m monthly- D rated basis over a period of 15 to 20 years, without regularising them. It was contended that the very fact that they are continued over such a long period is itself proof of the fact that there is regular need for such · employment. In that view of the matter, following directions were given, after reviewing the earlier decisions of this court elaborately.

E "From amongst the casual and daily rated employe.es who have completed ten years of service by December 31, 1989, 18,600 shall immediately be regularised with effect from January 1, 1990 on the basis of seniority-cum-suitability.

There shall be no examination but physical infirmity shall mainly be the test of suitability.

The remaining monthly rated employees covered by' the para- graph 1 who have completed ten years of service as on Decem- ber 31, 1989 shall be regularised before December 31, 1990, in a · phased manner on the basis of seniority-cum-suitability, suitability being understood in the same way as above.

The balance of casual or daily rated employees who become entitled to absorption on the basis of completing ten years of · service shall be absorbed/regularised in a phased manner on the same principle as above on. or before December 31, 1997.

p. 849 Copy page pinpoint

At the point of regularisation, credit shall be given for every unit of five years of service in excess of ten years and one additional increment in the time scale of pay shall be allowed by way of weightage.

There was a direction that the claims on other heads would be considered at the time of final disposal. We have come to the conclusion that apart from these reliefs no other would be admissible."

Having given the said direction, the Bench (Ranganath Misra, M.M.Punchhi and S.CAgarwal,JJ.) made the following observations: C "We are alive to the position that the scheme which we have finalised is not the ideal one but as we have already stated, it is the obligation of the court to individualise justice to suit a given situation in a set of facts that are placed before it. Under the scheme of the constitution the purse remains in the hands D of the executive. The legislature of the State controls the Consolidated Fund out of which the expenditure to be incurred, in giving effect to the scheme, will have to be met. The flow into the Consolidated Fund depends upon the ·policy of taxation depending perhaps on the capacity of the payer. Therefore, E unduly burdening the State for implementing the constitutional obligation forthwith would create problems which the State may not be able to stand. We have, Therefore, made our directions with judicious restraint with the hope and trust that both parties would appreciate and understand the situation. The instrumen- tality of the State must realise that it is charged with a big trust. F The money that flows into the Consolidated Fund and con- stitutes the resources of the State comes from the people and the welfare expenditure that is meted out goes from the same Fund back to the people. May be that in every situation the same tax payer is not beneficiary. That is an incident of taxation and a necessary concomitant of living within a welfare society."

11Copy pinpoint11. The second case (Jacob) arose from Kerala. Upon the estab- Jishment of Kerala Water Authority under Kerala Water Supply and Sewetage Act, 1986, all the functions of Public Health Engineering Depart- ment were also transferred to the Authority. All the employees of the said H

850 SUPREME COURT REPOR11S ' (1992] 3 S.C.R.

F In the light of the said principle and in the li~t of the principles emerging from the decisions of this court - which were elaborately dis- cussed-the following directions were given: I j

"(1) The Authority will with immediate ~ffect regularise the services of all ex-PHED employees as per i~s Resolution of30th G '- January, 1987 without waiting for State Government approval. I

(2) The services of workers emplQyed by the Authority between 1st April, 1984 and 4th AuguSt, 1986 will be regularised with immediate effect if they possess the requisite qualification~ for the post prescribed on the date of appointment of the con-

STATE v. PIARA SINGH [REDDY, J.] 851.

cerned worker. A

(3) The services of workers appointed after 4th August, 1984 and possessing the requisite qualifications should be regulated in accordance with Act 19 of 1970 provided they have put in continuous service of not less than one year, artificial breaks, if any, to be ignored. The Kerala Public Service Commission B will take immediate steps to regularise their services as a separate block. In doing so the Kerala Public Service Commis- sion will take the age bar as waived.

- (4) The Kerala Public Service Commission will consider the question of regularisation of the services of workers who pos- sess the requisite qualifications but have put in less than one year's service, separately. In doing so the Kerala Public Service C

commission will take the age bar as waived. If they are found fit they will be placed on the list along with the newly recruited D candidates in the order of their respective merits. The Kerala Public Service commission will be free to rearrange the list · accordingly. Thereafter fresh appointments will issue depend- ing on the total number of posts available. If the posts are inadequate, those presently in employment will make room for the selected candidates but their names will remain on the list E · and they will be entitled to appointment as and when their turn arrives in regular course. The list will enure for such period as is permissible under the extant rules.

(5) The Authority will be ~t liberty to deal with the services of the workers who do not possess the requisite qualifications as it may consider appropriate. in accordance with law.

(6) Those workers whose services ·have been terminated in violation of this Court's order in respect of which Contempt 1

Petition No. 156 of 1990 is taken out shall be entitled to the benefit of this order as if they continue in service and the case of each worker will be governed by the clause applicable to him depending on the category to which he belongs and if he is fourid eligible for regularisation he will be restored to service and assigned his proper place." 1H

p. 852 Copy page pinpoint

12Copy pinpoint12. As would be evident from the observations made and directions given in the above two cases, the court must, while giving such directions, act with due care and caution. It must first ascertain the relevant 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 B exchequer but also has the effect of increasing the cadre strength of a particular service, class or category. Now, take the directions given in the judgment under appeal. Apart from the fact the High Court was not right- as we shall presently demonstrate in holding that the several conditions imposed by the two Governments in their respective orders relating to c regularisation are arbitrary not valid and justified - the high Court acted rather hastily in directing wholesome regularisation of all such persons who have put in one year's service, and that too unconditionally. We may venture to point out the several problems that will arise if such directions become the norm: D (a) Take a case where certain vacancies are existing or expected and steps are taken for regular recruitment either through Public Service Commission or other such body, as the case may be. A large number of persons apply. Inevitably there is bound to be some delay in finalising the selections and making the appointments. Very often the process of selec- E tion is stayed or has to be re-done for one or the other reason. Meanwhile the exigencies of administration may require appointment of temporary hands. It may happen that these temporary hands are continued for mor.e than one year because the regular selection has not yet been finalised. Now according to the impugned direction the temporary hands completing one year's service will have to be regularised in. those posts which means frustating the - regular selection. There would be no post left for regularly selected persons even if they are selected. Such cases have indeed come to this court from these very two States.

(b) In some situations, the permanent incumbent of a post may be absent for more than a year. Examples of this are not wanting. He may go on deputation, he may go on Faculty Improvement Programme (F.1.P.), or he may be suspended pending enquiry. into charges against him and so on. r There may be any number of such situations. If a person is appointed temporarily in his place and after one year he is made permanent where will the permanent incumbent be placed on his return? Two persons cannot

STATE v. PIARA SINGH [REDDY, J.) 853

..J. hold the same post on a regular or permanent basis. A (c) It may also happen that for a particular post a qualified person is not available at a given point of time. Pending another attempt at selection later on an unqualified person is appointed temporarily. He may continue for more than one year. If he is to be regularised, it would not only mean foreclosing of appointment of a regular qualified person, it B would also mean appointment of an Unqualified person. ~ (d) Such directions have also the effect of disregarding and violating the rule relating to reservation in favour of backward class of citizens made under Article 16(4). What cannot be done directly cannot be allowed to be done in ·such indirect manner. a (e) Many appointments may have been made irregularly - as in this case - in the sense that the candidates were neither sponsored by the _,).. Employment Exchange nor were they appointed after issuing a proper advertisement calling for applications. In short, it may be a back door entry. D A direction to regularise such appointments would only result in en- couragement to such unhealthy practices..

'.fhese are but a few problems that may arise, if such directions become the norm. There may be many such and other problems that may y arise. All this only emphasises the need for a fuller consideration and due circumspection while giving such directions.

--.:. 13. Now we shall proceed to examine whether the High Court was right in holding that the several conditions prescribed in ~he orders issued by the two Governments from time to time are bad. In particular, whether the High Court was right in holding that prescribing a particular date by --.: I

which the prescribed period of service should have been put in and the further condition that the candidate must have been sponsored by Employ- ment Exchange, are arbitrary and unreasonable. These G.Os. were issued by the Government from time to time. These orders are not in the nature of a statute which is applicable to all existing and future situations. Tliey G were issued to meet a given situation facing the Government at a given --, point of time. In the circumstances therefore, there was nothing wrong in prescribing a particular date by which the specified period of service (whether it is one year or two years) ought to have been put in. Take for example, the orders issued by the Haryana Government. The first order is H

p. 854 Copy page pinpoint

A dated 1st January, 1980. It says, a person must have completed two years of service as on 31st December, 1979, i.e., the day previous to the issuance of the order. How could it be said that fixing of such a date is arbitrary and unreasonable? Similarly the order dated 3rd January, 1983 fixes 15th September, 1982 as the relevant date. This notification/order does two things. Firstly; it excludes class III posts of clerks from the purview of the B S.S.S.B. in case of those who have completed a minimum of two years of service as on 15th September, 1982, and secondly, it provides for their regularisation subject to certain conditions. No particular attack was made as to this date in the High Court. Consequently the Government of Haryana had no opportunity of explaining as to why this particular date was fixed. Without giving such an opportunity, it cannot be held that the fixation of the said date is arbitrary. What is more relevant is that the High Court has not held that this particular date is arbitrary. According to it, fixation of any date whatsoever is arbitrary, because in its opinion the order must say that any and every person who completes the prescribed period of service must be regularised on completion of such period of service. The next order dated 24th March, 1987 prescribes the date as 31.12.1986 i.e., the end of the previous Y.ear. In the circumstances, we see no basis for holding that fixation of the date can be held to be arbitrary in the facts and circumstances of the case. In this. connection, reference may be made to the decision of this court in Dr. Sushma Shanna v. State of Rajasthan, E (1985) S.C. 1367. The Governor of Rajasthan had issued an ordinance stating that "all t~mporary lecturers as were appointed as such on or before the 25th day of June 1975 and are continuing as such at the commencement of the Rajasthan Universities Teachers (Absorption of Temporary Lec- turers) Ordinance, 1978 (Ordinance No. 5 of 1978) shall be considered by the University concerned for their absorption and substantive appointment on the recommendation of the Screening Committee constituted under section 4 subject to their fulfilling the conditions of eligibility including minimum qualifications prescribed by the University concerned under the relevant law as applicable on the respective dates of their temporary appointments and subject also the availability of substantive vacancies of lecturers in the department concerned."

\ The validity of the said ordinance was questioned on the ground that the fixation of the date, 25th day of June, 1975, was arbitrary and has been r chosen only because that was the date on which internal emergency was proclaimed. It was also submitted that the further requirement that the

STAIB v. PIARA SINGH [REDDY, J.) 855 I lecturer appointed should be continuing as such on the date of commen- · A cement of the ordinance (12.6.1978) is an equally arbitrary and un- reasonable condition. Both these contentions were rejected by this court. The court negatived the contention that the prescription of the said date · and the further requirement of being in service on the date of ordinance have th.e effect of excluding persons who have put in long years of service B but were not continuing on the date of ordinance, making the said condi- tions discriminatory. Such possibilities, it was held, were not enough to castigate the said condition as arbitrary. It was observed that there was no evidence to show any attempt on the part of the Government to separate or penalise pre-emergency appointees or for that matter any particular class of appointees. In this context, we must remember that what is in issue •C is not the wisdom of the executive in issuing a particular order or orders I but the validitY thereof. The court may think it more desirable that the order should be in particular terms as indicated by it, but that is not enough.

14Copy pinpoint14. The next question is whether the orders issued by the two b Government were arbitrary and unreasonable in so far as they prescribed that only those employees who had been sponsored by Employment Ex- change should alone be regularised. In our opinion, ti.tis was a reasonable 1

and wholesome requirement designed to curb and discourage back door entry and irregular appointments. The Government orders say that all E y those who have been sponsored by Employment Exchange or have been appointed after issuing a public advertisement alone should be regularised. 1

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

p. 856 Copy page pinpoint

15Copy pinpoint15. We may now consider whether the High Court w-as justified in holding that inasmuch as Haryana and Punjab are sister States and because prior to 1966 Haryana was a part of Punjab, the rule relating to length of service requisite for regularisation should be uniform in both the states. We see absolutely no basis for the said holding. They are two different States having their own Governments, merely because one Government B chooses to say that one year's temporary or ad hoc service is enough for regularisation it cannot be said that the other state must also prescribe the very same period or that it cannot prescribe a longer or shorter period. The fact that there is a single High Court for both the States and the Union Territory of Chandigarh is no ground for saying that the orders issued by c them should be uniform.

16Copy pinpoint16. The learned Judges have further directed that in so far as the State of Haryana is concerned class III and IV posts which were within the purview of the S.S.S.B. shall equally be within the purview of regularisation orders issued by it. The learned Judges have pointed out that for a period of 10 years there was no such Board functioning and further that from the year 1970 to 1987 "most of the class III and IV posts with which we are concerned were kept out of the purview of the S.S.S.B." The correctness of the said factual statement is not questioned before us. It is therefore, not necessary to alter or modify the direction made by the High Court on this aspect. In fact, no arguments were addressed to us with respect to the said direction made by the High Court. If any of the petitioners have been excluded from consideration (for regularisation) on the basis of the above condition, they may be considered and appropriate orders passed.

17Copy pinpoint17. Now coming to the direction that all those adhoc/temporary employees who have continued for more than an year should be regularised, we find it difficult to sustain it. The direction has been given without reference to the existence of a vacancy. The direction in effect means that every adhoc/temporary employee who has been continued for G one year should be regularised even though (a) no vacancy is available for him - which means creation of a vacancy (b) he was not sponsored by the Employment Exchange nor was he appointed in pursuance of a notification \ ~- calling for applications - which means he had entered by a back-door (c) he was not eligible and/or qualified for the post at the time of his appoint- .ment (d) his record of service since his appointment is not satisfactory. ... H These are in addition to some of the problems indicated by us in pare 12,

p. 857 Copy page pinpoint

which would arise from giving of such blanket orders. None of the decisions A relied upon by the High Court justify such whole-sale, unconditional or- 1

ders. Moreover, from the mere continuation of an adhoc employee for one year, it cannot be presumed that there is need for a regular post. Such a presumption may be justified only when such continuance extends to several years. Further, there can be no 'rule of thumb' in such matters. 1B Conditions and circumstances of one unity may not be the same as of the other. Just because in one case, a direction was given to regularise employees who have put in one year's service as far as possible and subject to fulfilling the qualifications, it cannot be held that in each and every case , such a direction must follow irrespective of and without taking into account · the other relevant circumstances and considerations. The relief must be moulded in each case having regard to all the relevant facts and cir- cumstances of that case. It cannot be a mechanical act but a judicious one. Judged from this stand point, the impugned directions must be held to be totally untenable and unsustainable.

18Copy pinpoint18. So far as the members of the work-charged establishment are concerned, the nature of their employment is already pronounced upon by this court in Jaswant Singh v. Union of India, [1980] 1 S.C.R. 426.

It is statd therein:

"A work-charged establishment broadly means an astablish- E me.nt of which the expenses, including the wages and allowances of the staff, are chargeable to "works". The pay and allowances of employees who are borne on a work-charged establishment are generally shown as a separate sub-head of the estimated cost of the work. F The entire strength of labour employed for the purposes of the Beas Project was work-charged. The work-charged employees are engaged on a temporary basis and their appoint- ments are made for the execution of a specific work. From the I

very nature of their employment, their services automatically G come to an end on the completion of the works for the sole purpose of which they are employed. They do not get any relief under the Payment of Gratuity Act nor do they receive any retrenchment benefits or any benefits under the Employees State Insurance Schemes. H

p. 858 Copy page pinpoint

A But though the work-charged employees are denied these benefits, they are industrial workers and are entitled to the benefits of' the provisions contained in the Industrial Disputes Act. Their rights flow (rom that special enactment under which even contracts of employment are open to adjustment and modification. The work-charged employees, therefore, are in a B better position than temporary servants like the other petitioners who are liable to be thrown out of employment ·without any kind of compensatory benefits."

Be that as it may, so far as the State of Haryana is concerned, this C contention has become of academic interest in view of the orders issued on 24th March, 1987 and 6th April 1990, which we shall presently notice. In view of the said orders, the direction given by the High Court becomes unnecessary. Though the State of Punjab has not issued any such orders, it appears from the affidavit filed on its behalf (sworn to by Sri P.C.Sangar, D Deputy Secretary to the Government, Department· of Personnal dated 19.3.1991) that a scheme of regularisation of these employees has been prepared in pursuance of the impugned judgment. The said scheme is, however, not made conditional upon the result of these appeals against the judgment. On a perusal of the scheme, we find it to be a reasonably fair scheme. We hope and trust that irrespective of the result of these appeals, the said scheme shall be given effect to by the State of Punjab.

19Copy pinpoint19. The High Court has also directed that all those employees who fall within the definition of 'workmen' contained in the Industrial Disputes Act will also be entitled to regularisation on par with the work-charged employees in whose case it is directed that they should be regularised on completing five years of service in Punjab and four. years of service in Haryana. This direction is given in favour of those cas'ual labour and daily wagers who fall within the definition of workmen. In so far as work-charged employees, daily wage workers and casual labourers who do not fall within the definition of workmen are concerned, the High Court had directed their regularisation on ·completion of one year's service. We find this direction as untenable as the direction in the case of adhoc/temporary employees. In so far as the persons belonging to the above categories and who fall within the definition of Workmen are concerned, the terms in which the· direction has been given by the High Court cannot be sustained. H While we agree that persons belonging to these categories continuing over

' STATE v. PIARA SINGH [REDDY, J.] 859

a number of years have a right to claim regularisation and the authorities are under an obligation to consider their· case for regularisation in a fair manner, keeping in view the principles enunciated by this court, the blanket direction given cannot be sustained. We need not, however, pursue this discussion in view of the orders of the Government of Haryana contained in the letter dated 6.4.1990 which provide for regularisation of these persons on completion of ten years. We shall presently notice the contents . of the said letter. In view of the same, no further directions are called for at this stage. The Government of Punjab, of course, does not appear to ~ have issued any such orders governing these categories. Accordingly, there shall be a direction to the Government of Punjab to verify the vacancy position in the categories of daily wagers and casual labour and frame a c - scheme of absorption in a fair and just manner providing for regularisation of these persons, having regard to their length of service and other relevant ·conditions. As many persons as possible shall be absorbed. 'fhe scheme shall be framed within six months from today. ~~-

20Copy pinpoint20. So far as temporary or time-bound schemes are concerned, the D matter is exhaustively dealt with and pronounced upon in Delhi Develop- ment Horticulture Employees Union v. Delhi Administration, (1992) 1 J.T.

394. We need not add to it. In any event, the direction given by the High Court with respect to this category has not been assailed before us. E y 21. We may also point out that after the filing of the writ petitions and during the pendency of the Special Leave Petitions in this court, the Government of Haryana has issued certain further orders to which refer- ence may now be made.

(i) On 24th March 1987 the Chief Secretary to the Government of F Haryana wrote to all the Heads of Departments and others stating the "'<'. following : "the matter relating to the regularisation of the work charged employees was engaging attention of the Government for some fime past. After careful consideration it has now been decided that the services of all the work charge employees working in the Haryana State who have com- G, pleted four years or more continuous service on 31.12.1986 should be regularised". All the authorities were directed to take immediate ap- propriate action in that behalf. (We have no reason to believe that the said '"'\ orders will not be given effect to iµ full).

(ii) On 5th February; 1990 the Chief Secretary to the Government of H

86u SUPREME COURT REPORTS (1992) 3 S.C.R

A Haryana wrote to all the Heads of Departments and others apprising them of the new policy and procedure evolved by the Government in the matter of making adhoc appointments. The letter says that no adhoc appointment shall be made in future on any posts unless a proper requisition has been sent to Haryana Public Service Commission/Subordinate Services Selection Board. It says further that if any ad hoc appointment is required to be made B it shall be made only through Employment Exchange or by advertising such post in a daily newspaper after obtaining a N.A.C. certificate from the Employment Exchange. Such appointment even if made shall not last beyond nine months and will be subject to a regular appointment being inad~ by H.P .S.C./S.S.S.B. c (iii) In pursuance of the interim orders passed by this court in this batch (recording the undertaking given by the· counsel for the State of Haryana to frame a scheme for absorption) the Government of Haryana did frame such a scheme contained in the Chief Secretary's letter dated~ 6.4.1990 addressed to all the Heads of Department: It coverslhe ad hoc >.-_ D employees, work charged employees, casual workers/daily rated employees, workmen, ad hoc/temporary employees in temporary organisation as also seasonal workers. It is but appropriate that we set out the said letter in full:

No. 6/4/90-2GSI

E From -,-: The Chief Secretary to Govt., Haryana

F 1. All Head of Departments, Commissioner Ambala, Hisar, Rohtak and Gurgaon Divisions and all the Deputy Commis- sions in the State. 7

2. The Registrar, Punjab and Haryana High Court, Chandigarh.

G Dated Chandigarh, the

Subject: Policy regarding regularisation of adhoc/work-charged employees and causal/daily wagers etc. r ········································· H Sir,

~ STATE v. PIARA SINGH [REDDY, J.) 861

I am directed to refer to the subject noted above and to state that the matter regarding laying down the policy with regard -i. to regularization of the services of Class-III ad hoc employee&, work-charged/daily wagers etc. has been under comideration of Govt. for some time past. After careful consideration, it has been decided that the regularization of these employees shall be .on the following terms and conditions:-

Category-I, Adhoc employees

(i) Only such afDwc class-III employees, who have completed two years service on 30.9.1988, shall be regularized to the 'C extent of available regular posts/vacancies on that date.

(ii) The work and conduct of such employees should have been over-all good category and no disciplinary proceedings are pending against them. A (iii) The employees possess the prescribed qualifications for D .. the post at the time of their appointment on adhoc basis.

(iv) The regularization will be against the posts/vacancies of the relevant categories only and in case, the employees belong- ing to general category have been appointed against reserved category posts/vacancies the services of such adhoc appointees shall not be regularized and their services shall be terminated in case, no general category vacancy/post (s) is available on 30.9.88.

(v) The recommendees of the SSS Board shall be absorbed against the remaining vacancies if any. The names of such remaining recommendees as cannot be absorbed shall be '-< returned to the Board to enable it to recommend their names to other departments for appointment against the clear vacancies. G (vi) After !egularization of adhoc amployees under the policy, if some posts/vacancies still remain unfilled, these shall be filled in from· the recommendees of the SSS Board, if any. 'i If some shortfall remains even after than, the procedure laid down in the insts. issued vide No.50/35/88-5GSI, dated H

862 SUPREME COURT REPORTS [1992] ,3 S.C.R.

A 5.2.90 shall be followed, for making up the shortfall, if fek necessary.

(vii) The employees, who are not covered under the above policy, their services shall be terminated.

B (viii) The seniority of the adhoc class-III employees so regularised viz-a-viz class-III employees appointed on regular basis shall be determined w.e.f. 30.9.88. The inter-se seniority of such adhoc Class-III employees shall be deter- mined in accordance with the date of joining the post on adiJ.o_c basis. If the date of joining the post (s), on adhoc c ~basis by such adhoc employees was the same, then the elder employee shall rank senior to an employe younger in age. If the date of joining the direct recruit and the date of regularization is the same, the direct recruit shall be senior.

D Categary-IL Work-Charged employees.

The work-charged employees who have completed 4 or more years of continuous service as on 30.9.88 shall be regularised. On regularization these employees shall be liable for transfer anywhere in the State of Haryana on any E project/work.

Category-Ill Casual Workers/Daily rated employees

With regard to these employees, the following policy will be followed: F (i) Casual/daily rated employees appointed on or before 30.9.1983 shall be treated as monthly rated established employees on a fixed pay of Rs. 750 (minimum of Class-IV pay scale) or the rates as fixed by the Deputy Commission concerned p.m. without any allowance w.e.f. 1.10.88. They G shall be entitled to an annual increment of Rs: 12 till their services are regularized. On regularization, they shall be put in the time scale of pay applicable to the lowest Group 'D' in the Govt. and they would be entitled to all other allowan- ces and benefits available to regular Govt. servants of the H corrosponding grade.

STATE v. PIARASINGH (REDDY,J.] 863

(ii) The casual or daily rated employees, who have completed A 10 years or more of service on 30.9.88 shall be regularized w.e.f. 1.10.88 on the basis of seniority-cum- suitability.

(iii) In respect of all such daily rated employees who have not yet completed 5 years service, a special review should be carried out regarding the requirement of their continuance B or retrenchment as the case may be.

(iv) In the case of those, who are required to be continued in service, the same t~rms and conditions will be applicable as in sub-paras (i) & (ii) above on completion of 5 years and

10. years service respectively. c I

(v) In the case of those whose services are no longer required, they may be relieved of their duties at the earliest possible. _A Category-W. Workmen. 0 The employee, who come within the definition of 'Work- men'under the Industrial Disputes Act, shall be entitled to the benefits under the Act and their services should be dispensed · with only after following the procedure laid down in the Act and after granting the requisite retrenchment benefits. E y Category-V. Ad/we/temporary employees in temporary organiza- tion. ~ The services of the employees working in temporary or- ganization can be terminated at the abandonment of the scheme and they will not be eligible for regularization.

Category-VI. Seasonal workers.

The services of seasonal workers appointed as daily wager or on work-charged basis shall not be regularized and they will be retrenched on completion/abandonment of the work.

-<. 2. The above policy may be brought to the notice of all con- cerned for strict compliance.

Yours faithfully, H

864 SUPREME COURT REPOR'fS [1992] 3 S.C.R.

A sd/- Under Secretary General Administration for Chief Secretary to Government, Haryana.

(iv) On 28th February, 1991, yet another order has been issued by the Governor of Haryana under the proviso to Article 309 of the Constitu- B tion providing for regularisation of class III employees who have put in service of two years on 31st December, 1990 subject to usual conditions. This order reads as follows:

"Notification c The 28th February, 1991

No. G.S.R. 11/Const./Art. 309/91.- In exercise of the powers conferred by the proviso to article 309 of the Constitution of India read with the proviso to clause 6 of Haryana Government, General Administrati.on Department (General Services), D notification No. 523-3 GSI-70/2068, dated the 28th January, 1970 the Governor of Haryana hereby specifies such Class III posts as have been held for a minimum period of two years on the 31st December, 1990, by Class III employees on ad hoc basis to be taken out of the purview of the Subordinate Services · E Selection Board, Haryana and their services shall be regularised if they fulfil the following conditions, namely:-

(i) that the employees have completed two years service on 31st December, 1990, and were in service on 31st December, 1990; F (ii) that the employees shall be regularised against the posts/vacancies of relevant categories. The employees of general category may be regularised in excess of their quota with the clear stipulation that in futlire recruitments only the candidates from reserve categories will be appointed G until the back log arising out of utilisation of reserve category vacancies by ge1:1eral category ad hoc employees is cleared:

(iii) that the employees should have been recruited through the H Employment Exchange or directly appointed by the ap-

STATE v. PIARA SINGH [REDDY, J.] 865

pointing authority after obtaining the non-availability cer- A tificate from the Employment Exchange;

(iv) that the work and conduct of such employees shall be of over all good category and no disciplinary proceedings are pending against them, and B (v) that the employees possessed the prescribed qualifications for the post at the time of their appointment on ad hoc basis.

2. The seniority of the ad hoc Cla-..:. ill employees so C 1

regularised, viz-a-viz, the Class Ill employees appointed on regular basis shoUld be determined with effect from 31st December, 1990. The inter-se-seniority of such ad hoc Class III employees shall be determined in accordance with the date of their joining the post on ad hoc basi~. If the date of joining the post (s) on ad '1_oc basis by such ad hoc employees was the D same, the an old employees shall rank senior tu an employee younger in age. If the date of appointment of the direct recruit and the date of regularisation of ad hoc employees is the same, the direct recruit shall be senior. E KULWANT SINGH

Chief Secretary to Government Haryana."

22Copy pinpoint22. So far as the Punjab Government is concerned, an affidavit sworn F ~ to by Sri G.K. Bansal, Under Secretary to the Government, Department of Personnal, Government of Punjab has been filed before us stating that the instructions issued by the Haryana Government for regularisation of the services of class III ad hoc employees contained in their notification dated 28.2.1991 shall be adopted by the Punjab Government mulatis mutandis. G The relevant portion of the affidavit may be extracted herein below:

"The policy instructions for the regularisation of services of Class-III adhoc employees issued by Haryana Government vide their notification dated 28/2/91 mutatis mutandis will be adopted as under:- H

866 SUPREME COURT REPORTS [1992) 3 S.C.R.

A (i) That the adhoc/temporarily appointed employees should have completed a minimum of two years service on 31/12/1990 and was in service on 31/12/90. While calculating the period of service, any break of notional nature not exceeding 30 days falling between adhoc/temporarily appointments in the same category of post (s) and in the same Department is to be B ignored. However, the break in adhoc/temporary service would be ignored in cases where:

(a) The employee concerned left service of his own volition either to join some other Department or for some other c reasons, or

(b) the adhoc/temporary appointment was against a post/vacan- cy for which no regular recruitment was intended/required to be made e.g. leave arrangements for filling of other short-term vacancies. D. (ii) that they fulfil the conditions of eligibility as prescribed (i.e. they have been recruited through the Employment Exchange or by open advertisement) academic qualifications, experience and the condition of age at the time of their first/adhoc/tem- porary appointment in accordance with the Departmental ser- E vice rules and instructions issued by the government.

(iii) that their record of service is satisfactory.

(iv) that they have been found medically fit for entry into Govermnent service and that their character and antecedents F have also been duly verified and found suitable for Government service;

(v) that a regular post/vacancy is available for regularisation;

(vi) that they have been. found fit for regularisation by the - G Departmental Selection Committees constituted in accordance with the instructions contained in Government circular letter No. 12/30/86/IGE/5139 dated 15/4/86; 'r (vii) The seniority of the adhoc/temporarily appointed class-III H employees so regularised vis-a-vis class-III employees ap-

STATE v. PIARA SINGH [REDDY, J.) 867

pointed on regular basis shall be determined w.e.f. 31.12.90. A The inter-se seniority of such adhoc/temporarily appointed class- III employees shall be determined in accordance with the date of their joining the post on adhoc/temporary basis. If the d~ie of joining the post(s) on adhoc/temporary basis by such adhoc/temporarily appointed employees was the same then an older emplo~ee shall rank senior to an employee younger in age. If the date of joining of the direct recruit and the date of regularisation of adhoc-temporarily appointed employee is the same, the direct recruit shall be senior;

The cases of such adhoc/temporarily appointed employees who have already completed three years service on 31st December, 90 and have satisfactory record of service but who do not fulfil the prescribed conditions with regard to qualifications, age or mode of their initial recruitment will also be considered for regularisation in relaxation of these conditions if the D Departmental Service Rules applicable to these employees provide for relaxation of these conditions of recruitment."

We are sure that many of the employees would get regularised under the orders aforementioned issued by both the Governments. E

23Copy pinpoint23. This is not a case, we must reiterate, where the Governments have

- failed to take any steps for regularisation of their adhoc employees working over the years. Every few years they have been issuing orders providing for regularisation. In such a case, there is no occasion for the court to issue any directions for regularising such employees more particularly when none of the conditions prescribed in the said orders can be said to be either unreasonable, arbitrary or discriminatory. The court cannot obviously help those who cannot get regularised under these orders for their failure to satisfy the conditions prescribed ther~in. Issuing general declaration of indulgence is no part of our jurisdiction. In case of such persons we can only observe that it is for the respective Governments to consider the feasibility of giving them appropriate relief, particularly in cases where persons have been continuing over a long number of years, and were eligible and qualified on the date of their adhoc appointment and further whose record of service is satisfactory. H

868 SUPREME COURT REPORTS (1992] 3 S.C.R.

24Copy pinpoint24. With respect to direction No. 8 (equal pay fdr equal work) we find the judgment singul~rly devoid of any discussion. The direction given ~ is totally vague. It does not make ·it clear who will get what pay and on what basis. The said direction is liable to be set aside on this account and is, accordingly, set aside. B In the matters posted before and heard by us, there are several S.L.Ps. preferred against orders of the High Court allowing writ petitions folloWing the judgment in Piara Singh. Leave is granted in all such matters ·as well and the appeals allowed in the same terms as the appeals against the judgment in Piara Singh. c

25Copy pinpoint25. Before parting with this case, we think it appropriate to say a few words concerning the issue of regularisation of adhoc/temporary employees in government service.

D The normal rule, of course, is regular recruitment through the prescribed agency but exigencies of administration may sometimes call for an adhoc or temporary appointment to be made. In such a situation, effort should always be to replace such an adhoc/temporary employee by a regularly selected employee as early as possible. Such a temporary employee may also compete along with others for such regular selec- E tion/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 witheld or kept in abeyance for the sake of such an adhoc/temporary employee.

F Secondly, an adhoc or temporary employee should not be replaced by another adhoc or temporary employee; he must be replaced only by a re6Ularly selected employee. This is necessary to avoid arbitrary action on the part of the appointing authority.

Thirdly, even where an adhoc or temporary employment is neces- G sitated 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 ap- ~ propriate method consistent with the requirements of Article 16 should be followed. In other words, there must be a notice published in the ap-

STATE v. PIARA SINGH [REDDY, J.] 869

propriate manner calling for applications and all those who apply in response thereto should be considered fairly.

An unqualified person ought to be appointed only when qualified persons are not available through the above processes.

If for any reason, an adhoc or temporary employee is continued tor B 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. c - The proper course would be that each State prepares a scheme, if one is not already in 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 labc;mr are con- cerned, 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 F positive approach coupled with an empathy for the person. As has been 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. G

We must also say that the orders issued by the Governments of Punjab and Haryana providing for regularisation of adhoc/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. H

870 SUPREME COURT REPORTS (1992) 3 S.C.R.

A 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 im- mutable. 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. B

26Copy pinpoint26. So far as the employees and workmen employed by Statutory/ Public Corporations are concerned, it may be noted that they have not issued any orders akin to those issued by the Punjab and Haryana Govern- + ments. Even so, it is but appropriate that they adopt as far as possible, c keeping the exigencies and requirements of their administration in view, the criteria and principles underlyfug the orders issued by their Govern- ment in the matter of regularisation and pas~ appropriate orders. In short, the Statutory/Public Corporations in Haryana will follow the orders con- tained in the letter dated 6.4.1990 referred to above, as supplemented by the orders in the Notification dated 28.2.1991,"whereas the Statutory/Public ,l... D Corporations in Punjab shall follow the criteria and principles stated in the affidavit of Sri G.K. Bansal, Under Secretary to the Government of Punjab, Department of Personnel referred to in para 22 above. These directions shall not, however, apply to these Statutory/Public Corporations function- ing within these States as are under the control of the Government of India. E These Corporations will do well to evolve an appropriate policy of regularisation, in the light of this judgment, if they have not already evolved ~ one, or make their existing policy consistent with this judgment to avoid litigation. ~

27Copy pinpoint27. For the above reasons, 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 namely direction Nos. 1,2,3,4,6 and 8 are set aside. The only direction given herewith is the one contained in para r 19.

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

No costs. r H N.P.V. Appeals disposed of.